Out Of Time Property Settlement
If you're out of time for a property settlement or divorce, there are still options available to you.
How long do you have to do a property settlement?
De facto relationships: 24 months from the date of separation. Married couples: 12 months from the date of divorce to commence the property settlement process.
What if we can't agree within the time period?
You must commence proceedings in either the Federal Circuit Court of Australia or the Family Court before the deadline expires, to protect your interest in the property.
What if the time limit has already passed?
Missing the deadline complicates your matter, but does not mean you're without relief — your separation date becomes critically important to what happens next.
Reaching an agreement out of time
You can formalise an agreement through a Minute of Consent Orders if both parties consent to the court's jurisdiction despite the timing issue. Recent amendments extend this option to de facto couples too.
Can't agree but don't want to go to court?
Three options: private negotiations between the parties; negotiations through legal representatives via correspondence or roundtable conferences; or arbitration — a voluntary alternative dispute resolution process where the parties appoint an arbitrator (often a senior barrister or retired judge) whose decision is binding.
What a settlement agreement should (and shouldn't) cover
It should deal with all assets and liabilities (joint or sole), superannuation and any splitting, and complete severance of the financial relationship. It cannot deal with child support payments, spousal maintenance, or a will or testamentary amendments.
Starting court proceedings out of time
This remains possible but requires obtaining leave of the court. You must prove that you or a child of the relationship is currently suffering, or will suffer, financial hardship, and explain why the matter wasn't brought forward sooner.