Out of Time Applications for Property Settlement/Spousal Maintenance

Spousal Maintenance and/or Property Settlement applications must be made within 12 months from the date the divorce becomes final. In the case of de-facto relationships, the applications must be made within 2 years from the time of separation.

What happens if you are out of time? 

In order to commence proceedings for Spousal Maintenance and/or Property Settlement, you would first have to apply to the Court for leave to apply as the time limitation has passed. Only after the Court has reviewed your application and granted leave can you then make an application for Spousal Maintenance and/or Property Settlement. 

The application for leave to apply for Spousal Maintenance and/or Property Settlement is a 2-step process:

1.     You would have to show that hardship would be caused to you if leave were not granted; and

2.     You would have to show that there is real probability of success in your claim for spousal maintenance and/or in the property settlement claim. 

Furthermore, you would also have to convince the Court that they should exercise their discretion to grant you leave. Issues the Court would consider in exercising their discretion include:

·         The length of the delay;

·         Reasons for the delay;

·         Whether there would be any prejudice to the other person due to the delay;

·         The strength on the merits of your case;

·         The hardship that would be caused if leave were not granted.  

DISCLAIMER

These information reflects the state of the law at the time of publication. The information is for general information purposes only and not intended to be relied upon as legal advice in respect to your particular circumstances. For specific and up-to-date legal advice regarding your situation, please contact one of our qualified lawyers.