Information Centre · Family Law
Time Limits for Property Settlement in Australia After Separation and Divorce
Statutory time limits that apply to property settlement and spousal maintenance claims in Australia under s 44 of the Family Law Act 1975 (Cth), and how leave applications are approached.
Key points
- Property settlement and spousal maintenance time limits are set by s 44 of the Family Law Act 1975 (Cth); separation alone does not start the married-party filing limit.
- Married parties ordinarily must apply within 12 months after divorce takes effect (s 44(3)); a late application may proceed with both parties' consent or discretionary leave under s 44(4).
- Eligible former de facto parties ordinarily must apply within 2 years of relationship breakdown (s 44(5)); both parties' consent or leave under s 44(6) provides a late-application pathway. A financial agreement set aside or found invalid has a special 12-month period.
- For property leave, hardship must be shown to a party to the marriage (or the de facto applicant) or a child. Maintenance has an alternative inability-to-support ground at the end of the filing period. Neither guarantees leave; delay, merits and prejudice can affect discretion.
- Consent Orders made within the period, and Binding Financial Agreements (which have their own statutory formalities and are not subject to s 44 limits), can provide finality; informal arrangements do not, on their own, prevent later claims within the statutory period.
- Legal advice should be obtained promptly where a deadline is approaching or has passed, so that the correct pathway (application, leave application, BFA or enforcement) can be identified on the evidence.
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Property settlement and spousal maintenance claims in Australia are subject to statutory time limits under s 44 of the Family Law Act 1975 (Cth). Missing a deadline does not automatically end a claim, but it does mean that a late application needs both parties' consent or the Court's leave, subject to the applicable statutory provisions.
Statutory framework
The property and maintenance limits are set by s 44 of the Family Law Act 1975 (Cth). Different subsections apply to married parties and to eligible former de facto parties. Both parties' consent is an alternative to leave. Leave remains discretionary and requires an applicable statutory ground: hardship, or the alternative maintenance ground discussed below.
Married parties
Under s 44(3), property settlement proceedings under s 79 and spousal maintenance proceedings under s 74 between parties to a marriage must ordinarily be instituted within 12 months after the divorce order took effect.
A divorce order made under Part VI ordinarily takes effect one month and one day after the order is made. The 12-month period runs from that effective date, not from separation.
De facto parties
Under s 44(5), property proceedings under s 90SM and maintenance proceedings under s 90SE between eligible former de facto parties must ordinarily be instituted within 2 years after the day the de facto relationship ended. See our companion guide on de facto property claims.
Leave out of time
Leave is not the only pathway. Sections 44(3) (married) and 44(5)(b) (de facto) permit a late application with both parties' consent. Under ss 44(3AA) and 44(5A), the Court may dismiss consent-based proceedings if consent was obtained by fraud, duress or unconscionable conduct and continuing would amount to a miscarriage of justice.
Section 44(4) (married) and s 44(6) (de facto) permit the Court to grant leave to institute proceedings out of time. For property claims, hardship must be shown to a party to the marriage or a child (s 44(4)(a)), or to the de facto applicant or a child (s 44(6)(a)). Satisfying that statutory threshold does not automatically result in leave; the Court retains a discretion.
For maintenance proceedings only, an alternative ground is inability, at the end of the applicable filing period, to support oneself without an income-tested pension, allowance or benefit (ss 44(4)(b), 44(6)(b)). Special timing rules also apply to revoked maintenance-agreement approvals (s 44(3A)) and financial agreements set aside or found invalid (s 44(3B) for married parties; s 44(5)(a)(ii) for de facto parties). The latter provides a 12-month standard period after the de facto financial agreement is set aside or found invalid. Obtain advice on the applicable provision.
Matters that may be relevant to the exercise of discretion can include the length of and explanation for the delay, the merits of the proposed application, prejudice to the respondent or affected third parties, conduct of the parties and the evidence available. Each application is assessed on its own facts.
Consent orders, BFAs and informal arrangements
Consent Orders applied for and made under s 79 or s 90SM within the relevant period provide finality within the family-law framework. See our guide to consent orders in family law.
A Binding Financial Agreement under Part VIIIA (married) or Part VIIIAB (de facto) is not a Court application and is not subject to the s 44 filing limits. It has its own statutory formality and independent legal advice requirements. See our guide to binding financial agreements.
Informal or handshake arrangements do not, on their own, prevent a later claim being brought within the statutory period.
Frequently Asked Questions
Does separation start the property settlement time limit for married couples?
No. For married couples, separation alone does not start the property filing limit. The 12-month period under s 44(3) of the Family Law Act 1975 (Cth) runs from the date the divorce order takes effect, not from the date of separation. A divorce order made under Part VI ordinarily takes effect one month and one day after it is made.
What is the time limit for married couples after divorce?
Under s 44(3), property settlement and spousal maintenance proceedings between married parties must ordinarily be instituted within 12 months after the divorce order took effect. A late application may proceed with both parties' consent or the Court's leave. Leave is subject to s 44(4) and remains discretionary; consent-based proceedings are subject to the s 44(3AA) miscarriage-of-justice safeguard.
What is the time limit for de facto couples?
Under s 44(5), eligible former de facto parties must ordinarily apply within 2 years after the relationship ended, not from a formal separation statement. Section 44(5)(a)(ii) also provides 12 months after a financial agreement is set aside or found invalid. A late application may proceed with both parties' consent under s 44(5)(b), subject to s 44(5A), or with discretionary leave under s 44(6).
What must the Court be satisfied of to grant leave out of time?
For property claims, s 44(4)(a) requires hardship to a party to the marriage or a child; s 44(6)(a) requires hardship to the de facto applicant or a child. For maintenance only, an alternative ground is that at the end of the applicable period the applicant would have been unable to support themselves without an income-tested pension, allowance or benefit (ss 44(4)(b), 44(6)(b)). Meeting either applicable threshold does not guarantee leave; the Court retains a discretion.
What factors can the Court weigh when exercising its discretion to grant or refuse leave?
Factors that may be relevant include the length of and explanation for the delay, the merits of the proposed application, the extent of any prejudice to the respondent or third parties, the conduct of the parties, and the evidence available. There is no universal checklist and each application is assessed on its own facts.
How do Consent Orders, Binding Financial Agreements and informal arrangements interact with the time limits?
Consent Orders under s 79 or s 90SM applied for and made within the relevant period provide finality. A Binding Financial Agreement under Part VIIIA (married) or Part VIIIAB (de facto) does not require a Court application and is not subject to the s 44 limits, but has its own strict formality and independent legal advice requirements. Informal or handshake arrangements do not, on their own, prevent a later claim within the statutory period.
Do the time limits apply if property proceedings are already on foot?
Once property proceedings have been properly instituted within the statutory period, the s 44 filing limit for that application is engaged. Separate steps — including enforcement of existing orders, appeals, or applications to vary or set aside — are governed by their own statutory frameworks and rules of Court.
What should a party do if a deadline is approaching or has passed?
Obtain legal advice promptly. The correct pathway depends on whether a divorce order has been made, whether the parties were married or in a de facto relationship, when the relationship ended, and what evidence is available. Where a deadline has passed, an application for leave under s 44(4) or s 44(6) may be required and should be prepared with evidence going to hardship and to the exercise of discretion.
How Parke Lawyers Can Help
Parke Lawyers acts for separating spouses and de facto partners on property-settlement time limits under sections 44(3) and 44(6) of the Family Law Act 1975 (Cth) and on out-of-time applications, through our Family Law team. Engage us early — leave to proceed out of time is not routinely granted.
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Speak with Parke Lawyers
Our family law team can advise on property settlement time limits, applications for leave and options for finalising a settlement.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.