The end of a relationship is a time of great upheaval. From moving homes to reshuffling childcare arrangements, switching utilities or closing bank accounts, there are a myriad of tasks to be done and issues to be considered. In the midst of it all, however, it is crucial not to overlook important legal deadlines and – conversely – to be aware where time limits don’t apply so that you can know which matters to prioritise.
No Time Limits – Going to mediation, and financial proceedings while still married
Parties can attend mediation with a qualified mediator to try and hash out an agreement about how to divide their assets or what the care arrangements for their children are going to be at any time, be it before separation or after.
Similarly, while a couple is still married, there is no time limit for either party to commence financial proceedings – although obviously getting things sorted sooner after separation rather than later can be easier from a practical sense.
12 Months – Starting parenting (after mediation) or financial proceedings (after divorce)
Where separated parents are in dispute about parenting arrangements, it is a general requirement that they participate in Family Dispute Resolution mediation, or FDR, before they can go to Court. Parties who participate in FDR will receive a section 60I certificate, which is required in order to commence proceedings in the Federal Circuit and Family Court of Australia.
There are exceptions to needing this certificate, such as situations or urgency or significant domestic violence, but you should speak to a family lawyer before assuming these will apply.
Once a party is issued a section 60I certificate, it is valid for 12 months. After that, the parties will need to try FDR again. This is part of the Court’s emphasis on parties resolving their own issues without the need for the Court to become involved.
A party also only has 12 months to commence financial proceedings from the date of their divorce (not the date the divorce order is made – the day the divorce takes effect). Someone looking to apply after this 12 months expires must get the Court’s leave to do so. For this reason, it is usually recommended that couples attempt to resolve the division of their property and/or spousal maintenance issues prior to applying for divorce, so as to avoid unintentionally “running out the clock”.
24 Months – Starting financial proceedings (de facto)
Parties who were previously in a de facto relationship have 24 months (2 years) from the date of separation to commence proceedings about financial matters. Again, someone who is looking to apply to the Court after this period must seek the Court’s leave.
The date of separation is more important in de facto relationships than it is when married couples separate and can be a point of contention. If you are uncertain about if or when you separated, speak to a family lawyer.
12 Month Minimum – Applying for divorce
The sole requirement for getting a divorce in Australia (other than being validly married in the first place) is that the parties have been separated for at least 12 months and are not getting back together. This is generally a pretty straightforward requirement and divorce does not need to be complex. However as above, getting a divorce triggers a further 12-month time limit on starting financial proceedings, and so it is normally best to resolve any financial matters before applying for a divorce.
24 Month Minimum – Being in a de facto relationship
On the other end of the timeline, Australian law generally requires a couple to have been in a de facto relationship for at least two years before the Court will make orders about their financial relations. However, this is a very general benchmark which carries many asterisks, and there are lots of other criteria which need to be considered in determining the existence or timeline of a de facto relationship.
For further information regarding any of the above time limits, if you believe you may be outside one of the above time limits, or for general questions regarding matters of family law, please contact the Hunt & Hunt family law team on (02) 9391 3000.
Article Prepared by: Benjamin Keyworth, Associate
