Did you know that there are limitation periods in which you need to apply to the Court to make property and spousal maintenance Orders?
For parties who have been married, you have 12 months after a Divorce Order has taken effect to institute proceedings (i.e. file an Application with the court). For De Facto couples, you have 2 years after the relationship has ended.
The policy for setting a time limit is to promote diligence in pursuing a claim; to counteract the unavailability or deterioration in the evidence relating to the claim and because it is seen to be in the interests of justice to allow parties to move on with their lives without fear of having a claim brought against them.
If your time limit has expired, you can institute proceedings only if the Court grants you leave to do so ‘out of time’.
The Court may grant leave if it is satisfied that:
- A party to the marriage, or a child of the marriage will suffer hardship if leave is not granted; or
- In proceedings that relate to spousal maintenance, if the circumstances of the Applicant are such that they would be unable to support themselves without an income tested pension, allowance or benefit.
In determining hardship, the Court will have regard to whether the Applicant has a claim worth pursuing and whether the claim has a real probability of success. The Applicant must also provide an adequate explanation as to why they allowed the time to lapse.
The Court will also consider such factors as; the prejudice to the Respondent in allowing the Applicant to commence proceedings out of time.
Whether leave will be granted is a matter of discretion for the Court and each case will turn on its own facts.
In a case known as Shedden v Shedden Justice Begg said: “it is desirable that there should be an end to litigation, and leave should not lightly be given”.
Justice Begg’s comments show the importance of ensuring that you are compliant with the time limitations in the Act.
Keep in mind, that leave to proceed out of time is a preliminary hurdle to the substantive proceedings. By having to satisfy the Court that you should be granted leave, you will incur legal costs that you would not otherwise have incurred had you instituted proceedings within the time frame permitted by the legislation.
Is your time limitation about to expire? Do you hate Cher? If so, please contact Catherine Henry Lawyers on 02 4929 3995 to discuss how to institute proceedings.