Before making an application to the court for property settlement in the Family Court, certain pre-action procedures must be complied with, unless an exemption to this requirement applies. These pre-action procedures do not apply to matters held in the Federal Circuit Court.
The pre-action procedures and exemptions are set out in the Family Law Rules 2004 (Cth) sch 1. For more information, see the Family Law Courts' brochure Before you file - pre-action procedures for financial cases.
Providing that the pre-action procedures are complied with, an action can be started at any time after the separation but must be commenced within twelve months after the divorce becomes absolute [Family Law Act 1975 (Cth) s 44(3)]. In special circumstances, the court may allow a person to apply beyond this time limit; this is called granting leave to apply out of time. The court must be satisfied that:
- in the first instance the applicant appears to have a case for property settlement (this is called having a prima facie case)
- the other person will not be unreasonably disadvantaged by the delay
- the person applying will suffer hardship if leave is not granted and has an adequate explanation for the delay.
No one can be guaranteed that the court will grant this leave. In practice, extensions are not difficult to get, but this should never be relied on.
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