Applying for Leave to Commence Property Settlement Proceedings Out of Time
The Family Law Act imposes time limits for commencing proceedings in the Court for a property settlement. Once that time limit expires, it is necessary to obtain the Court’s leave to proceed with an Application, which is not granted automatically.
Pursuant to section 44 of the Act, proceedings for property settlement must be commenced within 12 months from the date on which a divorce order takes effect. For de facto couples, time expires 2 years after the end of the de facto relationship.
The Two Step Process
The Court will only grant leave to proceed out of time if:
- Satisfied that hardship would be caused to a party to the marriage/relationship or a child if leave were not granted; and
- The applicant can show that they have a real probability of success in their property settlement claim.
If hardship is established, the Court must still be persuaded that their discretion should be exercised in favour of the applicant. The relevant discretionary considerations include:
- The length of the delay;
- The reasons for the delay;
- Prejudice caused to the respondent by reason of the delay;
- The strength on the merits of the applicant’s case; and
- The degree of the hardship which would be suffered unless leave were granted.
Slocomb & Hedgewood
In this case, Ms Slocomb filed an application for property settlement 18 years out of time. The parties married in 1989 and were divorced on 1 September 1995. Ms Slocomb filed her application on 6 March 2013.
Initially, the Judge found that Ms Slocomb had demonstrated:
- Hardship – because if leave were not granted, she would be left to pursue a remedy in the State Courts (for the sale of a jointly owned property) in circumstances where any post separation contributions would not be taken into account; and
- A reasonable prima facie case that an application for property settlement could succeed.
Despite Ms Slocomb having satisfied the first step in the two step process, her application was dismissed because:
- Ms Slocomb had not provided an adequate explanation for her delay of 18 years – there was a notation on the Divorce Order warning of the time limitation and she had also consulted solicitors (although she claimed those solicitors did not advise her of the time limitation); and
- The prejudice to Mr Hedgewood would be significant due to the contributions he had made to the home and reliance that no claim had been made.
The Full Court of the Family Court allowed Ms Slocomb’s appeal and granted her leave to commence proceedings for property settlement out of time. The Court found that there was some explanation for the delay and Mr Hedgewood had been equally inactive in protecting his rights. Although the time delay was significant and the assets of the parties were relatively minor, the Court concluded that leave should be given to pursue property proceedings in the interests of justice.
For more information
Whitford & Whitford (1979) FLC 90-612