How Long After Separation Can You Claim Property?

Both married and de facto couples have a right to make claims on property after separation in Australia, under the Family Law Act.

Separating from a partner is a complex and emotionally charged process, made even more challenging when trying to agree on a property settlement which is often one of the most contentious parts of a separation.

A claim must be made within a specified time to encourage timely resolution of property settlement issues and provide both parties with certainty.

What Is Considered Property?

Property refers to all assets owned by either or both parties. It does not matter whose name is on the ownership document or who purchased the item.

This includes, but is not limited to:

Cash and bank accounts;
Investments;
Superannuation;
Inheritances;
Businesses;
Vehicles;
Jewellery;
Artwork;
Family trusts, and more.

Property is not just limited to valuable items – it also includes liabilities and debts such as credit card bills and mortgage payments.

Property Settlement After Divorce & Separation Time Limit

The time limit for a property settlement claim after divorce or separation is 12 months from the date of the Divorce Order.

You don’t need to wait until the Divorce Order is granted to start negotiating a property settlement.

This is simply the date that the 12-month time limit commences.

We recommend that you begin negotiations with your former spouse or partner as soon as possible after separation, as property settlement can be a lengthy and complex process.

De Facto Property Settlement Time Limit

The time limit for a de facto property settlement claim is two years from the date of separation.

However, determining the actual date of separation (and thereby when the time limit starts) can be tricky.

How To Determine the Date of Separation?

A common way people determine the date of separation is when the two individuals stop living together as a couple.

Given that it is no longer unusual for separated couples to continue living together for various reasons, as the law allows for separation under one roof.

Factors used to determine the date of separation may include:

When did the couple stop sharing a bedroom?
When did the couple stop having a sexual relationship?
When did they separate their finances?
When did they notify government agencies (i.e. Child Support Services and Centrelink)?
When did they inform family and friends of the separation?

If a date is not agreed between the parties, the Court will make a judgement considering all relevant factors.

What Happens if the Married or De Facto Couple Reconcile?

If there is a reconciliation that lasts for three months or less, it will not affect the original date of separation; the clock does not stop on the time limit.

If the reconciliation lasts more than three months, the time limit commences when the couple separates for the second time.

Reducing the Risk of Further Claims

To reduce the risk of further claims, it’s important to put your property settlement in writing, preferably before the time limits expire.

This agreement can be done as a Binding Financial Agreement (BFA) or a Consent Order.

A Binding Financial Agreement is often preferred as it does not involve the Court.

It is essentially a contract between the parties who are free to agree to whatever they wish provided it complies with the provisions of the Family Law Act.

A Consent Order is an agreement between the parties approved by the Court.

Be aware that the Court will only make orders by consent if the proposed orders are just and equitable to both parties.

It is best to speak with a family law practitioner to decide which approach is best for your circumstances.

Can I Claim Property After the Time Limits Expire?

A party can make an application to have the time limit extended if they can prove to the Court that hardship would be caused to the party or a child if otherwise granted.

Further, you or your partner may be able to initiate new proceedings and make further claims if the Court sets aside your BFA or Consent Order.

Nonetheless, Courts generally seek to avoid interfering with any agreements and will only do so if there are compelling reasons.

For a BFA, compelling reasons include:

misrepresentation or fraud (i.e ex-partner hid assets);
change of circumstances in relation to children;
fraud against third parties (i.e creditors);
impracticability;
uncertainty and incompleteness; and
unconscionable conduct, duress, or undue influence.

For a Consent Order, compelling reasons include:

fraud;
new hardships or difficulties in relation to the care of children that were unforeseen at the time of signing the agreement;
one party acted in an unconscionable way;
one party has failed to comply with an obligation under the order;
it has become impracticable for the parties to carry out the order due to a change in circumstances; or
the property is seized by the government because of criminal activity.

Whether you’re dealing with simple or complex property settlement, it can be an overwhelming and lengthy process and it’s recommended that you seek independent legal advice as soon as possible.