We are sure we were not the only ones to read the article in The Australian titled ‘Aged Couple go to war over ownership of family home.’ If you did not get the chance to read it, here is the link.
What interested us about the article, and the case itself, is the amount of time that had passed between the separation and the commencement of the court proceedings. As outlined in the article, some 28 years passed between the date of separation and the Wife initiating court proceedings.
What may be surprising, is that it is not uncommon for matters to commence after a long period of separation and that it is completely legal.
The piece of legislation governing family law in Australia is the Family Law Act 1975. Under the act, there are certain time limits stipulated to married and de facto couples for commencing property proceedings. For married couples, the time limit is not brought into effect until they are divorced. As is reported in the article by The Australian, the couple never divorced and so the time limit under the legislation was never triggered. This is what enabled the Wife to commence the proceedings so long after separation.
If the wife in that matter had of obtained her divorce in 1986, it would have invoked the time frame under the Family Law Act giving the parties 12 months to initiate their property proceedings. If the parties in the article had of been in a de facto relationship however, they would have had a time limit of only two years to commence proceedings.
The wife says that she tried to obtain a divorce, but that her husband objected. While there is not enough information in the article to even speculate how or why that occurred, it nonetheless appears to have played a part in why such an astonishing amount of time had passed before the Wife initiated her property settlement proceedings.
If you have separated from your husband or wife, and have not yet had a property settlement or obtained a divorce, you may be breathing a sigh of relief at this information. However, in true lawyer fashion we are here to tell you it is not all smooth sailing if you delay your property settlement as in most cases, all property is taken into account as at the date of Courtand not the date of separation. Had the Husband or the Wife in the article gone on to increase their assets post separation by obtaining further properties, or growing a share portfolio, it is likely there would have been a very different outcome in the matter.
And if you’re thinking “My ex is out of time, I’m safe” – sorry, but you may not be protected. In some circumstances, the Court will allow ex spouses or partners to make a claim out of time. So not matter what your circumstances, if you have not had a property settlement, it is wise to seek Family Law advice from an expert.
If you were married and have separated from your spouse, we recommend you meet with a family lawyer to discuss your property settlement plan. Don’t wait 28 years! This also applies to a de facto relationship. Having the conversation sooner rather than later can help you get to settlement quicker and may help to avoid any need to commence court proceedings at all.
Tash Priestly is a lawyer specialising in Family Law at Farrar Gesini Dunn.