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Filing a Property Application ‘Out of Time’

Section 44(3) of the Family Law Act 1975 provides that parties have 12 months after the date of a divorce to file an Application for Property Orders. The de facto equivalent pursuant to section 44(5) of the Family Law Act 1975 is 24 months from the date of separation.

In order to file an Application for Property Orders after the above timelines have lapsed a party must seek leave from the Court. The Court will only grant leave however, if they are satisfied that the aggrieved party or any child of the relationship would suffer hardship if leave were not granted under s44(4) or s44(6).

To make a valid argument of ‘hardship’ the Court must first be satisfied that the party has a prima facie claim, or that the potential Property Application has a real probability of success. If a party is able to establish this they must then be able to satisfy the court with valid reasoning as to why the Application is being brought out of time.

In the case of Ordway & Ordway [2012] the Applicant Wife sought leave of the Court to institute property proceedings 26 years after her divorce order was made. The Wife was successful in arguing that she had not previously brought an Application because she had an informal arrangement with her ex husband and she was concerned that litigation would disrupt the status quo.

Under the arrangement the Wife lived in the former matrimonial home owned by her ex husband. He paid all the expenses associated with the property and supported the children and the Applicant. The Applicant made renovations to the property and continued working in her ex husbands business.

In this case, Cole FM held that if leave was not granted the Applicant would suffer hardship as she “would, in effect, be left with nominal assets” (para 41).

Furthermore, Cole FM held found that the Wife’s evidence supported a conclusion that she was reluctant to cause tension and a potential dispute with her ex husband. Cole FM held that it was apparent when considering the parties financial circumstances that there was a significant power imbalance. The Applicant held a genuine concern that if she pushed the issue she would lose her job within the Respondents business.

This case demonstrates that despite the time limit legislation places on parties applying for Property Orders, the Court has wide discretion to avoid injustice to a party by having the power to grant leave to file an Application out of time if the above elements are satisfied.

By Nicholes Family Lawyers


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