If you were married, you must apply for property orders within 12 months of your divorce taking effect.
If you were in a de facto relationship, you must apply within two years of separation.
After that, you need the court's permission, and it is not always granted.
The two time limits
- Married couples: 12 months from the date the divorce order takes effect.
- De facto couples: two years from the date the relationship broke down.
The same 12 month limit applies after a decree of nullity, counted from the date the decree is made.
A divorce order usually takes effect one month and one day after the hearing. The 12 months starts from that later date.
You can apply for property orders before the divorce. You do not need to wait for it.
What the time limit covers
The time limit applies to applications to divide property between you.
It also applies when you ask the court to make consent orders. If your agreement is filed late, you need the court's permission even though you both agree.
The time limit does not apply to child support or child maintenance.
It also does not apply to some other applications, such as a request only to declare who already owns what, or to vary or set aside existing property orders.
Ways to finalise a property settlement in time
- Consent orders. You agree, then file an Application for Consent Orders with the proposed orders. The court checks that the orders are just and equitable. Once made, they bind you both.
- A binding financial agreement. This is a contract made under the Family Law Act 1975. Each of you must get independent legal advice before signing. It is not approved by the court.
- An application to the court. If you cannot agree, the court decides what is just and equitable.
An informal agreement that is not in consent orders or a binding financial agreement cannot be enforced by the court. It does not stop the time limit from running.
Before you file in court
Unless an exemption applies, you must first make a genuine attempt to resolve the dispute. This includes:
- taking part in dispute resolution, such as family dispute resolution or mediation
- writing to the other party setting out your claim
- giving full and frank disclosure of your finances.
Exemptions include family violence or a risk of family violence, and urgency.
Leave time for these steps. The time limit keeps running while you complete them.
If the time limit has passed
You can still ask the court for permission. This is called leave to apply out of time.
You file an application asking for leave, with an affidavit setting out the facts you rely on.
The court decides whether to grant leave. Leave is not always granted.
Do not plan on leave. Treat the time limit as a hard deadline.
Superannuation
Superannuation is treated as property and can be split.
If you want to split super, it must be dealt with when you formalise the settlement.
A split does not give you cash now. The money stays in super and is usually accessed at retirement.
Where people get caught
Waiting for the other party to act
The deadline applies to both of you. If neither of you files in time, you both lose the right to apply without permission.
Relying on a handshake deal.
An informal agreement cannot be enforced by the court, and the time limit still runs.
Counting from the wrong date.
For married couples, the 12 months runs from when the divorce takes effect, not from separation or the hearing.
Filing agreed orders late.
Consent orders filed after the deadline still need the court's permission.
Leaving dispute resolution too late.
The steps before court take time. Start early.
If you or anyone in your family is at risk of harm, call 000.
Common questions
Q: We separated years ago but never divorced. Has my time run out?
A: For married couples, the 12 month limit runs from when a divorce takes effect. If there is no divorce yet, that limit has not started. Get advice on your dates.
Q: Can we agree to extend the time limit between us?
A: No. Only the court can give permission to apply out of time.
Q: Does the time limit apply to parenting arrangements?
A: These time limits apply to property and financial orders. Parenting matters are separate.
Check your deadline before it passes. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.