Upon your divorce becoming final you need to be aware that if you have not already resolved your outstanding property matters with your ex-spouse either by way of agreement or by commencing court proceedings that you have 12 months to make an Application to the Court for property adjustment or maintenance. The family law team at McLaughlins Lawyers are experienced in drafting the necessary court documents to enable you to make an Application to the Court and to represent you at Court when your matter is heard.
The Family Law Act specifically provides that parties have 12 months from the date their divorce becomes final to:-
- Make an Application to the Court for property adjustment; and
- Make an Application to the Court for spousal maintenance.
This means if you apply out of time the Court can refuse to hear your Application. There are times when the Court will hear your Application but you must prove to the Court that if your Application was not heard then hardship would be caused to you or a child, or in the case of an Application for maintenance that your circumstances were at the end of the 12 month period such that you would have been unable to support yourself without an income tested pension, allowance or benefit.
In the matter of Kent and Brook  FMCAfam 413 the husband filed an Application with the Court for property settlement 24 months after the divorce became final. The major asset of the parties was the former matrimonial home which was valued at approximately $102,850.00. Since the time the parties separated the wife had re-married and asserted that her new husband had renovated the property and spent some $80,000 in the renovations. The wife argued that even if the husband was successful in his Application then he would be unlikely to recover more than what he would spend running his Application, which was estimated at $30,000. The Husband argued that he would suffer hardship if the Court did not hear his Application. The Court did not accept the husband’s argument that he would suffer hardship if his Application was not heard and it was therefore dismissed.
The Court hard regard to the following factors in dismissing the Application:-
- The length of delay – the Court noted that it was a significant delay, some 12 months after the time limit expired
- The reasons for the delay – The husband argued that he had psychological problems which interfered with his ability to function. The Court did not accept there was evidence to support this argument.
- Prejudice as a result of the Respondent’s delay – The Court found that the wife’s new husband had contributed $80,000 towards the current value of the home that if the wife was to then loose the home then she would suffer unfair prejudice.
- Hardship the husband would suffer if leave not granted – The Court was not satisfied the husband would suffer hardship if leave was not granted.
If you would like advice about any family law matter whether you are in a relationship, separated or divorced please call the family law team at McLaughlins Lawyers today on (07) 5591 5099.