Approaching any marriage lawyer when filing an application for a divorce order can be daunting and overshadowed by emotion. The breakdown of any relationship brings uncertainty and stress. It is important to consider any legal requirements that may apply when finalizing the arrangements for children and/or distributing assets. A marriage lawyer will consider the Family Law Act 1975 which provides time limitations for the bringing of property claims.
In the recent decision of Welland & Hawthorn [2021] FedFamC1A, the Full Court heard an appeal from the dismissal of an application for leave which sought to bring property settlement proceedings out of time. In determining the duration of the parties’ de facto relationship, the Court found that separation had occurred in February 2016. Since the de facto wife filed her application in November 2019, it was 20 months out of time. The de facto wife had two children who lived with her when the de facto husband was incarcerated. It was claimed that the de facto wife had relied on assurances from the de facto husband in 2017 and 2018 in the form of financial provisions. Although the applicant spouse engaged multiple marriage lawyers between 2017 and 2019 no proceedings were actually brought.
According to s 44(6) of the Family Law Act 1975, the court can grant leave to apply after the standard application period has expired. This can only occur if the court is satisfied that certain circumstances applied.
On appeal the Court found the provisions of the Family Law Act had not been met. The Court concluded that ‘there would be some financial hardship to the applicant were she not granted leave, but it is not clear that it would be to the extent argued by her’. The Court considered that there was ‘no satisfactory explanation’ of why proceedings were not brought within the required time frame. Due to the length of time that had passed and the applicant’s evidence confirming the number of times she was advised to start proceedings from marriage lawyers but did not do so; leave to appeal was refused.
