It is vitally important that separating parties are aware of the statutory time limits in relation to formalising their property settlements.
For married parties, property proceedings must be commenced within 12 months from the date the divorce is granted, and for de facto parties, they must be commenced within 2 years from the date of separation. If parties wish to make an application for property settlement outside of these timeframes, it must be done so with the leave of the court and the court has the discretion to refuse to entertain these late applications.
In order to allow a late application, the court generally must be satisfied that the party or a child of the relationship would suffer hardship if leave is not granted or, in relation to maintenance order, the person making late application was unable to support themselves at the end of the applicable time limit (12 months from divorce if married, 2 years from separation if de facto) without an income-tested pension, allowance or benefit.
It is important to note that although the option may exist to apply to the Court for leave to file a property settlement application, in practice it could end up being a costly exercise, and more often than not, it would appear the Court is hesitant to allow such applications without an important and weighty reason for the delay.
A further risk associated with the delay of a property settlement is the fact that the Court will take a holistic approach to the assets and liabilities of the parties to the relationship, and this will generally be calculated at the time of the proceedings being commenced. This can significantly affect the outcome of property settlement proceedings if property or assets have been acquired by either party since separation without the assistance of the other party, or if substantial liabilities have been incurred by either party.
Generally, upon separation or divorce, it would be prudent to formally finalise the property settlement between yourself and your former spouse to ensure that matters are dealt with and allow both parties to move on with their lives.
Consent Orders or a Binding Financial Agreement (BFA) are both ways to formalise an agreement which is binding, enforceable and final. Consent Orders are filed with the Court and parties do not need independent legal advice (although it is strongly recommended that they do obtain advice as the Court can reject the documents if they are not ‘just and equitable’). On the other hand, both parties will need to obtain independent legal advice for a BFA to be binding and enforceable.
If drafted correctly, these formalised documents can offer you the peace of mind that your former partner cannot come back at you in the future for further money or assets, and this allows both parties to move forward with their lives.
If you have recently separated we strongly recommend that you contact one of our friendly Gold Coast Lawyers today on 07 5563 8970 for an initial consultation, which is free of charge to ensure that you are aware of your rights, entitlements and which settlement option may be the best for your particular circumstances.
