For most of us, the realisation that a relationship can’t be salvaged is emotionally devastating. Acknowledging this is especially difficult for couples who have been together for a long time, or who have children together. In any case, trying to figure out what to do next can be overwhelming.
What you need to remember is that if you are considering separation or divorce, or trying to reach consensus on related property and parenting issues, you don’t have much time to make certain decisions. This is because there are specific deadlines associated with family law matters.
Applying for divorce
To apply for divorce in Australia, you and your former husband or wife must be separated for at least one year (12 months). This does not necessarily mean, however, that you must live separately or that the separation must be continuous.
As stipulated in the Family Law Act, the Family Court is allowed to consider any amount of time prior to and after a brief reconciliation as one continuous period. However, this rule only applies if the reconciliation lasts three months or less.
The law also makes allowances for couples who don’t establish separate residences during separation, but you’ll have to meet a greater burden of proof to convince the Family Court that your separation was legitimate. For example, the Family Court may ask someone familiar with your situation to verify your claims about the separation.
Deadlines associated with financial/property matters
The deadlines associated with financial/property matters depend on whether you were married or in a de-facto relationship.
If your marriage ended in divorce and you have been unable to come to an agreement regarding the division of property (assets/liabilities), you must file an application for property orders within 12 months (one year) after the date that the divorce order goes into effect. When making this application, don’t forget that there is a one-month grace period between the time the divorce order is granted and when it goes into effect.
On a related note, if your marriage has broken down but you haven’t divorced, there are no deadlines for filing an application for these orders.
On the other hand, if you were in a de-facto relationship, you must file any application related to property matters within two years following separation. As part of this process, you must be able to prove the exact date of separation. If both parties cannot agree on that date, the Family Court will consider any evidence provided by each of you or others who can substantiate your respective claims.
Of course, there are exceptions to these rules. In certain circumstances, you may ask the Court’s permission for an extension (additional time) to make an application prior to the deadline; or for permission to make the application after the relevant deadline has passed. However, the Family Court will only grant your request if you prove:
- That you or your child/children would otherwise experience undue adversity;
- (in spousal maintenance cases) that your situation at the end of the applicable period would have precluded you from supporting yourself without an income tested pension, allowance or benefit.
Within this context, you should be aware that asking the Family Court for additional time or seeking its permission to make a post-deadline application is costly and time-consuming. Consequently, as much as possible lawyers advise their clients to make any relevant applications within the specified time frame.
Deadlines related to parenting matters
In general, there are no deadlines for applying for various parenting orders in Family Court. This holds true for couples who were married and those in de-facto relationships.
However, there is a catch. With certain exceptions, you cannot begin parenting proceedings in Family Court unless you go to dispute resolution sessions first. Ideally, these sessions will result in an agreement. If not, you will get a certificate that allows you to pursue the relevant order or orders in Court.
You should also be aware that in most cases, you can only apply for certain parenting orders if your children are 18 or younger.
If you have questions about family law matters such as divorce or separation, or related deadlines, it is important to get proper legal advice. Contact us today to learn more.
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