It is without doubt that we are living in unprecedented and uncertain times. Despite the uncertain times COVID-19 has presented us, the Family Court continues to operate and legislation governing family law matters continues to apply. If you are separated or divorced, this means that you are still subject to time limitations which may impact your family law rights.
In Western Australia, all separated couples need to give consideration to the following time limits imposed by the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA): –
- If you are married, you and/or your partner can apply for a divorce if you have been separated for more than 12 months. For any separated couples currently self-isolating in one home, the good news is that this requisite period of separation can include time spent living separated under one roof. It is very important to remember that the application for divorce only deals with the dissolution of the marriage itself, it does not address any issues relating to the division of property or care arrangements for children.
- If you were married and a Divorce Order has already been granted and taken effect, you have a period of 12 months in which to seek orders for property settlement in the Family Court. A Divorce Order takes effect one month and one day after the Divorce Order is made.
- If you were in a de facto relationship and intend to apply to the Family Court for orders relating to property settlement or spousal maintenance, you must do so within two years of the relationship ending. It is important to determine a specific final separation date to ensure that any application to the Family Court is made within the time limit. If there is a dispute as to the date of separation, the Family Court will consider the evidence and determine the date of separation.
- If you are seeking orders for parenting arrangements, there are no applicable time limits. However, you will need to attend Family Dispute Resolution prior to commencing proceedings unless the matter is urgent or you are otherwise exempt from this requirement. We recommend that you seek independent legal advice if you are unsure as to whether you need to attend FDR in your circumstances.
Before commencing any proceedings in the Family Court, parties are obligated to comply with pre-action procedures, which in financial matters includes the exchange of materials relevant to determining your financial position. We recommend that you seek legal advice if you are contemplating separation, or as soon as possible after you have separated to ensure that you have ample time to comply with your obligations and remain within your time limit.
There are some circumstances in which the Family Court may make orders for property settlement or spousal maintenance out of time on the application of either party. In considering whether to grant leave to a party for a financial application filed out of time, the court will consider whether:
- either of the parties or a child of the relationship will experience hardship if the application was not permitted to be heard;
- there is a prima facie case (meaning a reasonable basis for the application);
- there was an adequate explanation for the delay; and
- there is prejudice to the other party.
An application to proceed out of time is not without risk and can involve costly litigation. If you think you may be in danger of approaching a family law time limit, or if your time limit may have recently expired, we recommend that you promptly obtain advice from a specialist family lawyer to ensure your rights and entitlements to a property settlement or spousal maintenance application can be preserved.
Please contact Kerr Fels on (08) 6381 9080 to make an appointment for specific advice about your situation.
The information in this article is of a general nature and should not be relied upon for your family law matter.
About KERR FELS – Divorce and Family Lawyers
Kerr Fels is a boutique law firm practising exclusively in family and divorce law. We offer experience in settling complex financial matters arising from separation involving business entities, trusts and large asset pools, in addition to negotiating simple divorces. We are conveniently located in the Perth CBD.
Our philosophy is to provide client-focused cost effective, efficient and pragmatic legal advice. Don’t hesitate to contact us if you need advice about separation or divorce.
We are open for business Monday to Friday from 8.30am until 5.00pm.
Don’t hesitate to call us on (08) 6381 9080 to book an appointment.
A: Level 26, AMP Tower, 140 St Georges Terrace, Perth, WA.