Failure Cases and Official Sources
Missed the family law deadline? The 12-month and 2-year limits for property claims and how leave works
The Family Law Act time limits for property and spousal maintenance after divorce or de facto separation, how to apply for leave out of time, and illustrative failure cases.
Under the Family Law Act 1975, a former spouse must start property settlement or spousal maintenance proceedings within 12 months after the divorce order takes effect (s 44(3)), and a former de facto partner within 2 years after the relationship ended (s 44(5)). After that, you need the court's leave (permission), unless both parties consent to the application, and leave is not automatic: for de facto couples the court must be satisfied that hardship would be caused to the party or a child if leave were refused (s 44(6)), and for married couples the court applies a similar hardship test (s 44(4)). Applications filed with consent can still be dismissed if the consent was obtained by fraud, duress or unconscionable conduct (s 44(3AA) and (5A)). Separation alone starts no clock for married couples, but divorce does, so diarise the date the divorce takes effect.
General information only. If you are close to or past a deadline, get legal advice immediately.
The deadlines at a glance
| Relationship | Deadline runs from | Length | Applies to |
|---|---|---|---|
| Married | The date the divorce order takes effect (or a nullity decree) | 12 months | Property and spousal maintenance (s 44(3)) |
| Married, financial agreement set aside | Date the agreement was set aside | 12 months | Property (s 44(3B)) |
| De facto (outside WA) | The end of the de facto relationship | 2 years | Property, maintenance, declarations (s 44(5)) |
| WA de facto super splitting | The end of the de facto relationship | 2 years | Super under Part VIIIC (s 44(7)) |
| WA de facto property | Under the Family Court Act 1997 (WA) | 2 years (check) | WA property matters |
Married couples who separate but do not divorce have no time limit on property claims under s 44(3), because the clock only starts at divorce. But delay still causes problems: assets change value, evidence is lost, and the "date of hearing" valuation applies.
How leave is decided
When deciding whether to grant leave, the court generally considers:
- hardship to the applicant or a child if leave is refused
- the length of and reasons for the delay
- whether the applicant has a reasonable prima facie case, meaning a claim that would have real prospects
- prejudice to the other party, who may have rearranged their affairs on the assumption the matter was finished
A strong claim with a good explanation (for example family violence, serious illness, or being misled about the other party's assets) is more likely to succeed. Ignorance of the deadline alone is rarely enough.
Failure case 1: the forgotten divorce (illustrative)
Nadia and Paul separated in 2021 and divorced in 2023, with the divorce taking effect on 14 March 2023. They agreed informally that Nadia would keep the car and Paul the house, which Paul refinanced in his own name. Nothing was formalised. In 2025, Nadia learns the house has risen in value and that Paul's super is much larger than she thought.
- Deadline: 14 March 2024. Missed.
- She needs leave. She can point to non-disclosure of super, but she must show hardship and a reasonable case.
- Even if leave is granted, she pays costs to get there, and Paul may argue prejudice because he refinanced relying on the arrangement.
- Prevention: consent orders before the deadline.
Failure case 2: the de facto relationship that ended "gradually" (illustrative)
Sam and Lee lived together in Sydney for 8 years. Lee moved out in June 2022 but they kept seeing each other until early 2023. Sam files in May 2024.
- The deadline turns on when the relationship ended, which may be disputed. If the court finds it ended in June 2022, the deadline was June 2024, so May 2024 is in time. If it ended earlier, Sam needs leave.
- Prevention: record the end date and file well within 2 years.
Failure case 3: a deal that was signed but not filed (illustrative)
Carla and Ming signed a document called "property agreement" in 2024, without legal advice, and never filed consent orders. The divorce took effect in mid-2024.
- The document is not a binding financial agreement (no independent legal advice certificates) and not a court order.
- Either party can still apply for property orders, but only within 12 months of the divorce or with leave.
- Prevention: file an Application for Consent Orders, or sign a proper binding financial agreement.
What to do if you are near the deadline
- Count the date precisely. Get the divorce order or confirm the de facto separation date.
- Exchange disclosure quickly, but do not wait for negotiation to finish.
- File consent orders if you have agreed. If not, file an application to protect your position; you can continue to negotiate after filing.
- Check pre-action procedures: the court expects parties to attempt dispute resolution and exchange documents before filing, except in urgent cases or where there is a time-limit risk.
The cost of missing the deadline
An application for leave adds an extra contested step, often with affidavits about the delay and hardship. Illustrative only: several thousand dollars to tens of thousands of dollars in additional legal costs, plus the risk of losing the whole claim. Use the property settlement split calculator to see what is at stake before deciding whether to proceed.
FAQ
Does the time limit apply to parenting orders?
No. Parenting applications are not subject to these time limits. Child support also has its own rules.
Can the other party agree to extend the deadline?
They can consent to the application being filed out of time, and the court can then proceed, but it can still dismiss the case if consent was obtained improperly.
Is the deadline the same in WA?
Married couples in WA use the Family Law Act time limits through the Family Court of WA. De facto property claims in WA are under state law; check the Family Court Act 1997 (WA).
What if my former partner dies before we settle?
If proceedings were already started, they can generally continue against the estate. If not, you may have to consider a family provision claim, which has its own limits. See family provision claims.
Sources
- Federal Register of Legislation — Family Law Act 1975, s 44
- Federal Circuit and Family Court of Australia — time limits, pre-action procedures and consent orders
- Family Court of Western Australia — WA matters
- Related: mistakes overview, divorce and consent orders, free legal help
