Filing a Property Settlement Application ‘Out of Time’
An application for Property Orders (property settlement) is subject to time limits. Section 44(3) of the Family Law Act 1975 (the Act) provides that parties have 12 months after the date of a divorce to file an Application for Property Orders, while de facto partners have 24 months from the date of separation to file an application under section 44(5) of the Act.
If these times have lapsed, then a party must seek leave from the Court and satisfy the Court that if leave is not granted under s44(4) or s44(6) the aggrieved party, or any child of the relationship, would suffer hardship.
The Court, however, must first be satisfied that the party has a prima facie claim, or that the potential Property Application has a real probability of success. If a party can demonstrate this, then they must then be able to satisfy the court as to the reasons why the application is being brought out of time.
In the case of Ordway & Ordway  the Applicant Wife sought leave of the Court to institute property proceedings 26 years after her divorce order was made. The Wife was successful in arguing that she had not previously brought an application because she had an informal arrangement with her ex-husband and she was concerned that litigation would disrupt the status quo.
The parties had agreed that the wife would live in the former matrimonial home owned by her ex-husband and for the ex-husband to paid all the expenses associated with the property and support of the children and the applicant. The applicant also made renovations to the property and continued working in her ex-husband’s business. Cole FM ruled that if leave was not granted the wife would suffer hardship as she “would, in effect, be left with nominal assets” (para 41).
Cole FM also was of the view that the wife’s evidence supported a conclusion that she was reluctant to cause tension and a potential dispute with her ex-husband. Cole FM held that it was apparent when considering the parties financial circumstances that there was a significant power imbalance. The wife held a genuine concern that if she pushed the issue she would lose her job within the ex-husband’s business.
This case demonstrates that despite the time limit legislation places on parties applying for Property Orders, the Court has discretion to avoid an unjust outcome to a party.
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