In Australia, there are time limits which apply to divorce applications and property settlement after separation. If a relationship breaks down and you separate from your partner, both divorce and property settlement proceedings will need to be commenced within specified time limits.
The time limits for divorce applications and property settlement differ.
Time limits for divorce in Australia
Australia has a ‘no fault’ family law system, which means that there is no requirement for one of the parties to be ‘at fault’ for the breakdown of a marriage. To apply for a divorce in Australia, you must satisfy the eligibility criteria, but, in short, parties can apply for divorce one year and one day after separation.
The court must be satisfied that:
- the marriage has broken down irretrievably;
- the parties have separated; and
- the parties have been separated for at least 12 months prior to the date of filing the divorce application. In other words, you must be separated for at least 1 year and 1 day before you can file an application for divorce.
Scenario for determining eligibility for divorce
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- Anna and Ben were married on 8 April 2011.
- After more than 10 years of marriage, they separated on 8 August 2021.
- Ben moved out of the family home on the day of separation.
- The earliest that Anna and/or Ben would be eligible to apply for divorce is 9 August 2022.
If the parties have continued living under the same roof together after separation, they will still be able to apply for divorce 1 year and 1 day after the date of separation. However, in this case additional evidence of the separation will need to be provided to the court in the form of affidavit statements.
There are no set rules that apply to proving separation if separated couples continue to live together under the same roof. However, some factors that may be considered include:
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- written notation of the date the couple separated;
- evidence of financial separation like, for example, new separate bank accounts;
- notification to the children’s schools;
- notification to Centrelink;
- evidence of parties sleeping in different rooms in the family home;
- evidence that family and friends are aware of the separation;
- where one or both parties have entered a new relationship.
Aside from the 12-month time limit to commence divorce proceedings, applicants must also be able to answer ‘yes’ to at least one of the following conditions:
- You regard Australia as your home and intend to live indefinitely in Australia; or
- You are an Australian citizen by birth or descent; or
- You are an Australian citizen by grant of citizenship.
Notably, there is no requirement to divorce after separation. However, should you wish to re-marry, you will be required to divorce first.
Time limits for property settlement
After separation, time limits apply to commencing property settlement proceedings. Time limits are calculated differently for de facto couples and married couples.
Married couples must commence property settlement proceedings within 12 months of the date of their Divorce Order.
De facto couples must commence property settlement proceedings within 24 months of the end of the relationship.
Are there options if I miss the property settlement time limit?
It’s critical that separating couples note the relevant time limits for commencing property settlement to ensure they do not miss this deadline. We also recommend that parties do not delay in commencing property settlement; the longer you wait, the more complicated the process may become when you do get around to it.
There are limited options to commence property settlement proceedings outside the time limits (12 months for married couples and 2 years for de facto couples). Property settlement applications filed out of time are subject to the discretion of the Federal Circuit and Family Court.
Generally, an applicant must demonstrate that they, or any children of the relationship, will suffer hardship if an out-of-time application is denied.
There are no set rules for determining ‘hardship’, however, the court may give consideration to things like:
- whether the parties still own joint property together;
- whether either party would be disadvantaged without the relief of court orders;
- efforts made by either party to resolve the matter within the time limits; and/or
- reasons as to why the application was not filed within the time limit (for example, health or other factors outside the control of a party).
A quick review of time limits for divorce and property settlement
- To apply for divorce, you must first be separated from your ex-spouse for at least 12 months and one day;
- To apply for property settlement, different time limits apply for married and de facto relationships;
- Separated de facto couples must apply for property settlement orders within two years from the date of separation;
- Separated married couples must apply for property settlement orders within 12 months from the date of divorce;
- There is no minimum waiting period to apply for property settlement orders and generally speaking, the sooner the better.
Get help from a family lawyer
If you have any questions or would like advice regarding your application for divorce or property settlement, our family lawyers can help. We’ve helped thousands of Australians secure successful divorce and financial orders. We offer cost-effective fixed-fee packages which save you both time and money.
If you would like to discuss your situation in more detail, you can book a free no obligation phone consultation with one of our lawyers. We assist separated couples across Australia with all aspects of separation and family law.
Booking a consultation
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