Commencing Family Law Proceedings after Divorce: You have less time than you think

Getting divorced or ending a de-facto relationship can be a heady and liberating experience, however there is a critical consideration, that people tend to overlook, namely the statutory limitation periods that apply after a divorce order is made, the marriage nullified or the de-facto relationship ends.

Statutory Limitations: The Legislation

The Family Law Act 1975 sets a time limit to commence property proceedings in the Federal Circuit and Family Court of Australia (“FCFCOA”) after the end of a relationship and the length of the time limit depends on the nature of the relationship, marriage or de-facto.

When a couple are married they have 12 months after the divorce to begin property proceedings. To bring an application out of time, the individual must apply to the court for leave to do so.

If you are in a de-facto relationship you have 2 years after the end of the relationship, unless leave from the court is granted.

The court will only allow grant leave for an individual to commence property proceedings on an out of time basis is they are satisfied not allowing it would result in the individual or a child of the relationship would suffer hardship or if, in circumstances where the individual is asking for financial maintenance orders, that the person would be unable to support themselves without a pension, allowance or benefit.

Waldmann & Paddack [2024] 

In the recent appeal case of Waldmann & Paddack, Ms Paddack, the de-facto wife, applied for leave to commence proceedings out of time. Ms Paddack’s application was dismissed as she was over two and a half years out of time. Undeterred by this setback, Ms Paddack appealed this decision on the basis that she would suffer financial hardship if she was not allowed to proceed out of time, she argued that she would be roughly $350,000 worse off if her application was not allowed.

Ms Paddack was successful on appeal, with the trial judge finding that Ms Paddack’s had delayed commencing proceedings as she had a reasonable belief that the parties would be able to resolve the matter out of court; and Ms Paddack was confident of this as she and Mr Waldmann had an ongoing business relationship.

Mr Waldmann, then appealed this decision on the basis that the trial judge had made substantial errors in their judgment and had failed to provide reasoning for their judgement.

When the matter was heard the Court had to consider:

·         Whether the trial judge had made a mistake in their findings;

·         Whether the costs the parties would incur would be disproportionate to the funds Ms Paddack would reasonably receive if her application was allowed;

·         Whether Mr Waldman would suffer a substantial injustice if his appeal was declined; and

·         Whether Ms Paddack’s reason for failing to commence proceedings within time was sufficient to support an out of time application.

The court determined that the trial judge had substantially erred in allowing Ms Paddack ’s application to proceed as they failed to provide any substantive reasons for why they said that Ms Paddack had a case and that the case had a sufficient likelihood of success at achieving the outcome she sought. By the court’s calculations, Ms Paddack  potentially stood to gain approximately $150,000 rather than the $350,000 she was asking for.

The court found that Mr Waldmann would suffer a substantial injustice if Ms Paddack ’s application was allowed as Mr Waldmann had, following the statutory limitation period lapsing, arranged his affairs accordingly and as the likely costs that the parties would incur would be wildly disproportionate to the $171,000 Ms Paddack stood to gain.

Finally, the court was dissatisfied with Ms Paddack ’s reason for failing to commence legal proceedings within the statutory limitation period, Ms Paddack alleged that when she had approached a solicitor for advice, they had failed to advise her of the statutory limitation period. The court did not accept this reasoning, as doing so would enable any self-represented party or poorly advised party to circumvent the statutory limitation period by claiming ignorance of the law.

Ultimately, the court made orders providing that that Mr Waldmann’s appeal was upheld, that the Orders allowing Ms Paddack to apply out of time were to be set aside and awarded Mr Waldmann a costs certificate.

Key takeaway

It is vitally important for individuals to be aware of the statutory limitation periods when ending a marriage or de-facto relationship, as seeking leave to apply out of time can be an uphill battle and costly to boot. As demonstrated in the case of Waldmann & Paddack [2024], ignorance of the statutory limitation periods is not an excuse when bringing an application out of time.

Voice Lawyers: Your Guide in Family Law Matters

This article is general in nature and is not legal advice. If you need help dealing with a parenting dispute or require assistance with a family law matter, Voice Lawyers hear you. 

If you are experiencing or contemplating separation, we suggest you seek legal advice as early as you can, even if you do not intend to separate for a few months or even years. Every family and their situation is different and advice tailored to your specific circumstances can assist you in achieving your best possible outcome.

We help people navigate the complexities of family law with confident, practical advice. You can contact us at office@voicelawyers.com or call 02 9261 1954 to book a consultation to speak with one of our lawyers.

By Enda Byrne