Sang Hall and Oates in their 1984 hit. Being out of touch (with the legislation) and out of time does not necessarily prevent you from commencing family law property proceedings.

Section 44 of the Family Law Act establishes time limits on commencing family law proceedings with regards to property settlements or spousal maintenance.

  • Under Section 44(3), in matrimonial matters (those which deal with parties to a marriage), an Application for property proceedings must be commenced within one year from the date of divorce being granted.
  • Under Section 44(5), in de facto relationships, an Application for property proceedings must be commenced within 2 years from the date of the end of the relationship.

Despite this, it is not uncommon that parties to a marriage or de facto relationship may not have undertaken an application for property settlement within the time limits imposed under Section 44. Sometimes this can be to the severe detriment of one of the parties in particular.

Fortunately, our adversarial legal system grants discretion to the Federal Circuit and Family Court of Australia (“the Court”) as to whether parties can still undertake a property settlement.

Under Section 44 of the Family Law Act, the Court will consider whether denying the Application will cause “hardship” to either party, or any child or children of the relationship.

The term “hardship” is not defined in the Family Law Act, leaving it up to the discretion of the Court as to whether they will allow proceedings to be commenced.

Over the years, case law has assisted to develop how the Court will use its discretion. The case of Jacenko & Jacenko [1986] FamCA 25 established the following elements to be considered by the Court:

  1. Is there a prima facie case? That is whether at face value the applying party (“Applicant”) would have a property settlement to pursue but for the time limit passing.
  2. Would either party or any children suffer hardship? That is whether granting or denying the application would cause the Applicant or the Respondent to be unfairly prejudiced or suffer an injustice. The Court may consider such facts as the history of the relationship, the conduct of the parties and the possible consequences for the parties.
  3. Is there a ‘reasonable’ explanation for the delay? The Court will consider whether the Applicant has adequately explained the reasons the delay in making the Application.

A more recent case of Slocomb & Hedgewood [2015] FamCAFC 219, an Application for property settlement was granted in favour of the wife despite being 18 years out of time.

The short facts of this matter, the parties were married in 1989, and divorced in 1995. The wife and the three children moved from the matrimonial home where the husband remained after remarrying. The primary judge found it would cause unjust hardship on the husband to enter a property settlement that required the sale of the former matrimonial home, where he resided with his second wife and their children.

The wife appealed to the Full Family Court who, in applying the principles of Jacenko, found that although the wife’s explanation for the delay, being she was self-represented in the divorce and was unaware of Section 44, was inadequate, the hardship faced by the wife outweighed that of the husband. Accordingly, leave to commence proceedings was granted to the wife thereafter.

At Everingham Solomons, we have the expertise and experience to assist you with all matters relating to family law, because Helping You is Our Business.

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