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  • Writer's pictureJarrod Carter

Deadlines in the Family Court: Proceeding out of Time

Facing the financial complexities of a relationship breakdown is an overwhelming and multifaceted challenge for all parties involved. Not only does it entail navigating a maze of legal requirements and considerations, but it also demands an intricate understanding of the unique financial dynamics that shape each relationship. During such an emotionally charged time, the complexity of assessing and dividing assets, managing debts, and determining future financial obligations can be daunting.

What amplifies this complexity is the crucial factor of time. The necessity to address these issues promptly is paramount, as matters can become significantly more convoluted after extended periods of separation. As time passes, financial situations are liable to change drastically, whether through shifts in asset values, alterations in employment status, or the accumulation of new financial obligations. These changes can cloud the financial picture and create a bewildering web of entanglements that make settling the matter much more arduous.

Therefore, understanding and adhering to the specific time limits for commencing legal proceedings related to property settlements and spousal maintenance is not just a matter of legal compliance. It's a practical necessity, aimed at minimizing uncertainty and potential hardships. By addressing these financial matters expediently, both parties have the best chance of achieving a clear and fair resolution. This article delves into the legal landscape that governs these time limitations, highlighting the importance of taking prompt action and outlining the considerations and consequences that define this vital aspect of family law.

When a long-term relationship breaks down, whether married or de facto, it is of utmost importance that the parties strive to settle out of the family court system. The cornerstone of this process lies in clear and polite communication about the relevant matters, ensuring that correspondence is both effective and respectful. It entails numerous small yet vital tasks, all converging towards the settlement. Valuation of all items within the asset pool, including superannuation, liabilities, cars, houses, caravans, and other possessions, must be undertaken with accuracy and fairness. Finding common ground on their value may involve open discussion or the appointment of professional valuers. Subsequent conversations must then focus on identifying the items each party wishes to retain, leading to discussions about the overall percentage split of assets based on both contributions and future needs. All of this hinges on good faith communication and complete transparency in disclosing all relevant financial documents. Should these efforts falter, the matter may need to be decided by the family court, a scenario where a keen understanding of jurisdictional deadlines becomes paramount. The emphasis on settling outside of court underscores the value of collaboration and mutual respect, which not only facilitates a smoother resolution but also often preserves the dignity and integrity of the relationship's shared history.

Time limitations in family law are among the essential factors to be considered when dealing with relationship breakdowns, specifically regarding property settlements and spousal maintenance. These limitations, often referred to as 'Limitations Periods,' represent the legally prescribed time frames within which certain actions must be initiated. Adherence to these periods is not just a legal formality but a strategic consideration that can greatly influence the resolution of financial matters.

Commencing Proceedings Out of Time - Requirements and Hardship:

If you have been separated from a DeFacto relationship for 2 years, or divorced for one year, you will need to apply to proceed out of time in the Family Court for a property settlement. Starting proceedings after the time limitations have expired isn't merely a procedural obstacle; it's an intricate process that demands thoughtful maneuvering and profound comprehension of the law. The court doesn't easily permit these exceptions, as the time restrictions are established to preserve structure and assurance in legal matters. Time constraints are essential, as it would be unjust to allow someone to claim a part of their ex-spouse's wealth that was independently accumulated in the years following a separation. This time limitation serves as a crucial element in upholding justice.

The question of hardship is central when seeking to commence proceedings out of time. The legal definition of hardship in this context is multifaceted, and the courts must be convinced that failure to allow the proceedings would cause undue hardship to the applicant. The concept goes beyond mere financial distress and can encompass other personal and familial difficulties. Hardship can also include the unjust enrichment of one party at the expense of the other, and the courts are vigilant in ensuring that legal technicalities do not lead to unjust outcomes.

Courts also weigh other factors when evaluating an application to commence proceedings out of time. These include the reasons for the delay, the prejudice that might be suffered by the other party if the application is allowed, and whether the applicant has acted fairly and honestly in all dealings related to the matter. The court's overriding concern is to achieve a just outcome, balancing the need for legal certainty and procedural integrity with the humane recognition of the unique and often unpredictable challenges of human life and relationships.

The Family Court will typically scrutinize the circumstances surrounding the delay, including whether legal advice was sought and obtained, and if not, why. If a party has not had legal advice, the court may assess whether this was a reasonable decision based on the circumstances. The court's interest in this factor pertains to the understanding of the applicant regarding the legal implications, deadlines, and requirements.

If the court finds that the party has failed to seek legal advice without a valid reason and that this directly contributed to the delay, it may weigh against them in the court's decision to grant permission to proceed out of time. Conversely, if the court determines that the failure to obtain legal advice was reasonable, or if the party was misadvised, this may be considered a factor in favor of allowing the application.

The consideration of legal advice fits into the broader assessment of whether the delay was reasonable, the potential hardship to the other party, and the overall interests of justice. It's an evaluation based on fairness and equity, reflecting the complex and sensitive nature of family law matters, where the understanding of legal rights and obligations is critical.

Overview of the Law

In 2020, an acceptance by the Commonwealth of a referral from Western Australia culminated in the incorporation of Part VIIIC into the Family Law Act 1975 (Cth), known as the “Family Law Act.” This modification allowed the Family Court of Western Australia and, under certain conditions, the Magistrates Court of Western Australia, to be endowed with the federal authority to execute superannuation splitting orders, as delineated in Family Law Act, section 39H. The implementation of these changes occurred in 2022.

The provisions under the Family Court Act enable a de facto partner, following the conclusion of a de facto relationship, to seek an order as per sections 205ZCA, 205ZE, or 205ZG, or a declaration according to section 205ZA(1), if initiated within the standard application timeframe. This period is outlined in section 205ZB(1)(a)(i) as either 2 years subsequent to the termination of the de facto relationship or (ii) a span of 12 months after a financial agreement or preceding financial agreement between the partners is either annulled or deemed unlawful.

Section 205ZB(2) authorizes the court to permit the de facto partner to apply beyond the standard application period if the court is persuaded that denial of leave would lead to hardship to the de facto partner or a child. In a parallel manner, section 44(6) of the Family Law Act furnishes that the court can grant a party permission to apply after the standard period if it believes that hardship would be inflicted on the party or a child if the leave is not granted.

The Commonwealth case law has widely examined the notion of hardship. Although many instances of these cases are associated with marriage, the central tenets are applicable to parties in de facto relationships when seeking to proceed outside the stipulated time limit in section 44(5). Nonetheless, section 44(6) for de facto relationships limits the consideration of hardship to that experienced by ‘the party’ who submits the application, and the hardship to a respondent if leave is withheld is not deemed pertinent. This differentiation is largely theoretical and is expected to function in a manner that aligns with common practice (For further reference on this matter, consult Family Law Commentary: Time Limits for the Institution of Maintenance and Property Proceedings Leave to Institute Proceedings Out of Time Threshold Requirement [36.310] under the title "Hardship" if leave were not granted).

Guidelines for Advancing Outside of Standard Time (Commonwealth)

In the case of the Marriage of McDonald (1977) 31 FLR 426, Chief Justice Evatt, at 428, determined that an individual applying for permission to advance beyond the regular time must prove that there is a sound initial case for relief if they had initiated the proceedings on time, and that rejection of their claim would result in hardship. The applicant must also provide a satisfactory reason for the delay. Any potential harm to the respondent might also be taken into account.

The Definition of Hardship in Legal Precedents

In the case of the marriage of Whitford (1979) 35 FLR 445 (“Whitford”), the concept of hardship was explored at 452 as a prerequisite for the exercise of judicial discretion. The initial condition to be met is the court's satisfaction that hardship would be inflicted upon the applicant or a child from the marriage if permission were not granted. Once satisfied, the court must then decide, using its discretion, whether to approve or deny the application to commence proceedings.

At 453, the term “hardship” was likened to experiences of severity, harshness, deprivation, or significant detriment. Anything challenging to endure could be classified as hardship. The denial of permission would be improbable if the right or entitlement at risk was considered trivial, but it doesn't have to be of great substance.

According to 446, the court cannot conclude that hardship would be caused if there is no genuine likelihood of success, and permission should not be granted if any resulting hardship would likely remain unaddressed.

Lastly, between 454 and 455, the Court asserted that the applicant doesn’t necessarily have to be in “dire need.” A potential loss of entitlement to property or money, or the inability to settle the financial and property relationships between the parties, might be seen as hardship. This is true even if a resolution of property or financial matters is sought, as the applicant might end up with the same or even less than they already possess in legal or equitable terms.

De Facto Relationships (Commonwealth) - Aspects Related to Hardship

In the case of Montano v Kinross [2014] FCCA 843, which dealt with a separated de facto couple, Judge Turner examined whether the wife could present a valid argument for a property settlement, if there was a reasonable justification for her delay in attempting to initiate proceedings, and whether allowing proceedings would harm the husband.

From paragraphs [11] to [14], the court noted that there had been no alteration in the couple's financial and property relations since they separated on November 23, 2009. The wife's Affidavit stated that she was unable to complete the building of their home, and based on this, the court found a plausible argument for a property settlement due to her inability to start proceedings.

At paragraph [19], the wife's mental condition was cited as a reason for the delay. However, at paragraph [34], the court observed there was no justification for the 7-month delay between March 7, 2013, and October 14, 2013, terming it as significant, and dismissed the application for permission to start proceedings for this reason. At paragraph [30], it was found that the husband would not suffer any prejudice, as his concerns could be handled in future property proceedings.

In Chancellor v McCoy (2013) 49 Fam LR 641, the court explored the elements contributing to hardship. It determined that hardship was evident due to the substantial asset pool, meaning it was “not trivial,” the fact that the applicant not being in “dire circumstances” was irrelevant, the 27-year duration of the de facto relationship, and a “reasonable claim to be heard,” meaning the result of property division was not a necessary consideration. It was not just about finances, but also the need to finalize the financial and property relations between the parties. If permission was refused, the applicant would endure significant harm due to the loss of the right to initiate proceedings (at paragraph [62]).

In the case of Gadzen v Simkin [2018] FamCAFC 218, the court did not find evidence of hardship. This decision was based on the initial financial contributions at the beginning of the relationship, the fact that the couple had been separated for a longer period than they had lived together, the wife's lack of contribution to the husband's assets, and her receipt of superannuation contributions and additional monetary amounts from the husband since the separation (at paragraph [61]).


Proceeding out of time in the Family Court is a complex and nuanced aspect of family law that requires careful consideration and action. The delay after separation can cause significant complications, especially with tracking changes to the asset pool. As assets fluctuate, properties are sold or acquired, and financial circumstances change, an already intricate situation becomes even more convoluted. It underscores the vital importance of obtaining legal advice after separation to fully understand one's legal standing and rights.

The process of proceeding out of time is not just complex, but also expensive and uncertain. Keeping a vigilant record of the limitation period is essential, as once this period expires, commencing proceedings in the family court creates an additional hurdle. While separation itself is undeniably painful and difficult, leaving the finances unresolved only serves to prolong the emotional pain, resentment, and hurt associated with the dissolution of the relationship.

In conclusion, prompt legal consultation and a keen awareness of the timelines involved can aid in navigating this intricate legal landscape. Even in the midst of emotional turmoil, taking decisive legal steps can prevent future hardship and facilitate a more amicable resolution. Ignoring or postponing these essential legal matters only exacerbates the challenges, making the healing process more protracted and potentially affecting the financial wellbeing of the parties involved. Therefore, immediate legal action, coupled with vigilance in tracking essential deadlines, can be seen as crucial steps toward a smoother and less painful transition during a turbulent period of life.

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