Timelines and Time Limits in Family Law Matters

Important Timelines and Time Limits in Family Law Matters

To help you understand your options, we’ve put together the most common types of family law matters and the timelines and time limits associated with them as per the Family Law Act 1975 (Australia’s family law system legislation).

Divorce process time limits and timelines

The following time limits and timelines are specifically for the process of getting divorced legally, and not for the other matters that arise as a result of divorce – we will talk about those shortly.

Applying for divorce in Australia is a relatively straightforward process that can actually be done online. The divorce system in Australia is a no-fault system, which means that neither party needs to prove that the other party was at fault for the relationship ending, rather they need to prove that the relationship has irretrievably broken down – which is where the first relevant timeline comes in.

Before you can apply for divorce, you need to have been separated for a period of 12 months. This separation period helps to prove that the relationship has irretrievably broken down. Separation looks different for every former couple too. Commonly, one or both parties, will move from the home they share to separate homes, while for others, they may not be able to do this and remain under the same roof.

It’s important that both parties are aware that the separation is in place (even if both parties do not agree to the separation) and it’s also very important to record the separation date.

The next time limit to be aware of for divorce in Australia is regarding serving divorce papers. When you apply for a divorce, you can do so through a sole application for divorce or a joint application. If you apply solely, you will be required to serve divorce papers to your former partner and the time limits are below:

• If your spouse is in Australia, you must service the divorce documents to them at least 28 days before the court hearing.
• If your spouse if overseas, you must serve the divorce documents at least 42 days before the court hearing.

There are exceptions to the above time limits, for example, if you’re unable to locate your spouse, you may be able to apply to the court for an exemption from serving the documents or to be able to serve them to another party who is in contact with your spouse.

The final major timeline to be aware for the divorce process is when regarding a divorce order being effective. Once a divorce application has been processed, the court will grant a divorce, and 30 days from the date the divorce order is granted is when the divorce will be effective and finalised.

De facto separation time limits and timelines

While you can end a marriage with divorce, in Australia, there is no legal separation process for ending a de facto relationship. However, while there is no legal separation process, it is very important to be aware of the date of separation, as this can impact your ability to commence other family law proceedings.

The fact a separation occurred and the date of separation should be communicated between the former partners to ensure there is no confusion or complications.

Property settlement time limits and timelines

When a marriage or de facto relationship ends, it’s common for the former couple to divide assets and property between them. This could include assets and property that is owned jointly or individually owned, and this process is a somewhat common cause of disputes.

A property settlement agreement can be reached in a number of different ways, including:

• Prenuptial or Binding Financial agreement – some couples may have entered into an agreement regarding the division of assets prior to or during the marriage.
• Private agreement between the former partners – this agreement can be informal or formalised with consent orders or a binding financial agreement.
• Legal assistance – you may engage the services of a lawyer to help to create an agreement or negotiate on your behalf.
• Mediation – if you’re unable to reach an agreement, you may need to take part in mediation where you can discuss the situation with an impartial third party (the mediator) whose role is to facilitate open communication.
• Court orders – if you are unable to reach an agreement, and have also tried mediation, then you may need to apply to the Federal Circuit and Family Court of Australia for property settlement orders.

The most important time limits to be aware of for property settlements are regarding how long you have to be able to commence property settlement proceedings with the Court.

For married couples, you have 12 months after the date the divorce order became final to apply to the court for property settlement orders. De facto couples have 24 months from the date of separation to apply for property settlement orders.

While this may see like a significant amount of time, it’s important to act fast because applying to the court for orders should only be used as a last resort option. So, you need to allow time to attempt to discuss and negotiate with your former partner, as well as potentially try mediation, before being able to apply to the court and this time can go fast.

If you had entered into a prenuptial agreement and believe that you have grounds to challenge it, the same time limits – 12 months after the divorce for married couples and 24 months after separation for de facto couples – apply to be able to bring this challenge to the court.

If you would like to learn more about the property settlement process, you can read about it here.

Spousal maintenance time limits

In circumstances where a former spouse is unable to adequately support themselves, the other spouse may be ordered to provide financial support to them for a period of time and this is called spousal maintenance or de facto maintenance.

This financial support is not an automatic entitlement, rather an application will need to be made to the court and it will only be granted if the other party can provide the support and still support themselves too.

Either party could be required to provide spousal maintenance support and the court will consider factors like the age, health income and ability to work of each party before making a decision regarding spousal maintenance.

There are time limits associated with applying for spousal maintenance support, and they are as follows:

For couples who were married and have divorced, they have 12 months from the divorce order taking effect to be able to apply for spousal maintenance.

For de facto couples who have separated, the application for de facto maintenance must be made within two years after the date of separation.

It’s also possible for couples who are still married and not yet divorced, or the relationship is still intact, to apply for spousal maintenance orders. This is not an overly common practice, but it is possible.

Parenting matters time limits

When it comes to applications relating to parenting and child matters, there are no time limits for filing these applications.

Parents of a child, regardless of whether they were married, in a de facto relationship, or not in a relationship at all, have the ability to apply to the court for various parenting orders at any time, as long as the child is legally a child – under the age of 18 years.

The role and responsibility of a parent is a long-lasting one and it is likely that circumstances will change over the course of the child’s life, so it’s important to allow parents to have the flexibility to apply for different orders or make changes where appropriate.

If you’re in a situation where a matter is particularly urgent, it is possible to ask the court to prioritise this, however, we highly recommend seeking legal advice in this situation to ensure the most efficient course of action is taken.

Before applying to the court for parenting orders, we also recommend seeking legal advice from an experienced family lawyer – there may be options available to you that allow you to avoid applying to a court for orders and we can help you work these out.