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 the divorce order takes effect (s 44(3)); leave under s 44(4) is discretionary and requires the statutory hardship threshold to be met.
- Eligible former de facto parties ordinarily must apply within 2 years after the day the relationship ended (s 44(5)); leave under s 44(6) is likewise discretionary and requires the statutory hardship threshold.
- Meeting the hardship threshold does not guarantee leave; factors that may be relevant include the length of and explanation for the delay, the merits of the proposed application, prejudice to the respondent and third parties, and the evidence available.
- 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 the applicant must persuade the Court to grant leave to proceed out of time.
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. In each case the Court's power to extend time is discretionary and subject to a statutory hardship threshold.
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
Section 44(4) (married) and s 44(6) (de facto) permit the Court to grant leave to institute proceedings out of time. Leave requires the Court to be satisfied that hardship would be caused to the applicant, or to a child, if leave were not granted. Satisfying that statutory threshold does not automatically result in leave; the Court retains a discretion.
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. Where the 12-month period has expired, s 44(4) permits the Court to grant leave to institute proceedings out of time; leave is discretionary and not granted as of course.
What is the time limit for de facto couples?
Under s 44(5), eligible former de facto parties must ordinarily institute property or maintenance proceedings within 2 years after the day the de facto relationship ended. Section 44(6) permits leave to apply out of time. The 2-year period runs from the end of the relationship, not from any formal separation statement.
What must the Court be satisfied of to grant leave out of time?
Under s 44(4) (married) and s 44(6) (de facto), the Court must be satisfied that hardship would be caused to the applicant, or to a child, if leave were not granted. This is a statutory threshold that the applicant must meet on the evidence. Satisfying the hardship threshold does not automatically result in leave being granted; 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.