Following a marriage separation or the breakdown of a defacto relationship it is important to remember that there are minimum time requirements and time limitations for the filing of some documents in the Family Court.
Either party to a marriage can apply either by themselves or jointly with their former spouse for a Divorce Order in the Family Court after you have been separated for 12 months.
This does not necessarily mean that you and your ex need to have been living in separate houses for 12 months before you can apply. If you have been separated but living together under the same roof you will need to present independent evidence to the Court before a Divorce Order will be made by the Court.
How much does it cost?
There is a Family Court filing fee for an Application for Divorce which is currently $900 or $300 if you hold a Health Care or Concession Card.
It is also important to note that an application for divorce does not deal with issues associated with property settlement or care of the children.
For further information about obtaining a Divorce Order see our article How to Get Your Divorce.
Property Settlement if you were married
If you propose making an application to the Court as to property settlement or spousal maintenance, the application must be made within 12 months after the Divorce Order takes effect.
A Divorce Order takes effect one month after the date the Court makes the Divorce Order. After that time an application for property settlement or spousal maintenance cannot be made without first obtaining the leave of the Court, and the leave of the Court is by no means assured.
Property Settlement if you were in a defacto relationship
If you were in a de facto relationship and you propose making an application to the Court as to property settlement or spousal maintenance, the application must be made within 2 years after the relationship has ended. In this respect, it is important to establish when the date of final separation was because unlike with a divorce, you don’t have the divorce order dictating the time limit that applies for making an application to the court for property settlement and or spousal maintenance.
If there is a dispute about when the date of separation occurred the Family Court will look to the evidence presented by both parties as well as any available independent evidence.
If two years has passed since the date of separation and an application for property or spousal maintenance is made to the Family Court, the application cannot proceed without first obtaining the leave or permission of the Court, and as with married couples, leave of the Court is by no means assured.
If you are having to file an application out of time you will need to establish that not granting the leave to proceed out of time will cause hardship (ie financial) to a party and or a child of the relationship. The Court will also consider things like what has led to the delay in filing an application. Seeking to file an application out of time can be both a time consuming and expensive exercise and the outcome is not always guaranteed.
Unlike with issues relating to property settlement and or spousal maintenance there is no time limit with respect to filing an application for issues relating to a child of a relationship whether the parties were married or in a defacto relationship.
Unless the matter is urgent the court does however require that before parties make an application to the Court in respect to issues relating to children they attend mediation in an attempt to settle the matter.
The court’s primary concern in dealing with applications relating to the care of children is to determine what is in fact in the child’s best interests.
How much does it cost?
There are fees associated with the filing of an application for property settlement, spousal maintenance and or issues relating the children. Those fees do vary depending on what orders are sought and can be reduced if you hold a Health Care or Concession card.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.