There’s a deadline on sorting out your property after separation, and a lot of people find out about it far too late.
The short version:
- If you were married, you’ve got 12 months from the day your divorce order takes effect.
- If you were in a de facto relationship, you’ve got 2 years from the date you separated.
Miss it and you can’t simply apply. You have to ask the Court’s permission to apply out of time, and permission isn’t automatic.
The two clocks don’t start at the same moment
This is what causes the most confusion, so it’s worth slowing down on.
If you were married, the clock doesn’t start when you separate. It starts when your divorce order takes effect, which is one month and one day after the divorce is granted. And you can’t apply for the divorce until you’ve been separated for 12 months.
So a married couple who separate and never divorce have no deadline running at all. The 12 months only begins once the divorce is finalised. It’s why some people are separated for years with the property still unresolved, and why finalising a divorce without sorting out the money can start a clock you didn’t know existed.
If you were de facto, the clock starts at separation itself. Two years, from the day the relationship ended.
That brings its own headache, because the date a de facto relationship ended is often genuinely unclear. People separate under one roof, reconcile, try again. If the two of you don’t agree on the date, that disagreement can turn into a real issue, and the deadline may have gone past while you were still working out whether it had started.
What if I’m already out of time?
You’re not automatically shut out, but you’re in a much weaker position.
You have to apply to the Court for leave, which is permission to bring your application late. The Court will want to understand why the delay happened, and it will generally want to be satisfied that real hardship would result if permission were refused. Your ex can oppose the application.
In practice that means an extra Court application, extra legal fees, and genuine uncertainty about whether your property claim gets heard at all. It’s an expensive place to end up, and an avoidable one.
Why waiting rarely works in your favour
Deadline aside, delay tends to work against you for reasons that have nothing to do with the rules.
The asset pool is assessed as at the date of settlement or the hearing, not the date you separated. So the longer things drag on, the more scope there is for the pool to shift. Someone pays down a mortgage, a business grows or falls over, superannuation moves, a new debt appears. Untangling who contributed what gets harder, and arguing about it costs money.
Financial disclosure gets harder too. Bank records become more difficult to track down, memories fade, and reconstructing where things stood at separation turns into a forensic exercise that you pay for by the hour.
Meeting the deadline isn’t the same as being finished
A private agreement between the two of you, however sensible and however carefully you’ve written it down, isn’t binding and won’t stop a claim later.
There are two ways to make a property settlement final.
Consent Orders. Your agreement is lodged with the Court and made into Orders without either of you having to turn up. Only one of you strictly needs a lawyer, although you’re both better off getting some advice. Costs are usually around $3,000 to $4,000 depending on how complicated things are.
A binding financial agreement. A private contract, but you have to observe a lot of formalities and you each need independent legal advice. Each of you will usually spend upwards of $5,000.
For most separating couples, Consent Orders are the way to go. Either way the point is the same. Until your settlement is formalised it isn’t actually over, and the door to a future claim stays open.
If your deadline is coming up
Don’t wait to see whether you can reach agreement first. It’s usually possible to protect your position by filing an application before the deadline and carrying on negotiating afterwards. Negotiating and filing aren’t alternatives, and starting a Court application doesn’t commit you to a trial. Most matters that get filed still settle by agreement.
And if you think you might already be out of time, that’s still worth a conversation. Getting advice early is what keeps your options open.
Come and talk to us
If there’s a deadline anywhere near your matter, bring it to us sooner rather than later. Your first appointment is free and it’s real advice. Book online or call us on 07 2114 7131. There’s more about how we approach these matters on our property and financial settlements page.
This article is general information only and doesn’t take your personal circumstances into account. It isn’t legal advice. Time limits are strict and how they apply depends on your individual facts, so please talk to a lawyer about your own situation without delay.
