Divorce and Separation
You can apply to the Federal Circuit and Family Court of Australia for a divorce after being separated for a continuous period of twelve months. This can include a period of separation under one roof.
You can read more about applying for a divorce here. After a divorce has been granted, the time limit on commencing proceedings begins.
For de facto couples, the time limit on commencing proceedings begins after the breakdown of the relationship. If you and your former partner disagree about when the relationship broke down, this can be determined by the court. The longer you wait, the more difficult it may become to prove that you are commencing proceedings within the time limit allowed.
Property and Maintenance
There is no waiting period required prior to commencing property or maintenance proceedings, provided that you have complied with the required pre-action procedures. You can read more about these pre-action procedures here.
There is no time limit for setting aside an existing property order, or for varying, reviving or setting aside an existing maintenance order.
You do not have to wait until you are divorced to commence property proceedings. However, once your divorce is finalised, you will have one year to commence proceedings relating to property or maintenance.
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De Facto Couples
Property or maintenance proceedings must be commenced within two years of the breakdown of a de facto relationship.
Out of Time
If you do not commence proceedings within these time limits, you must seek permission from the Court to make your application.
The Court will only grant this permission to apply outside of the time limit if you can demonstrate that hardship would be caused to you, your former partner, or a child if they do not allow it. Additionally, for maintenance proceedings commencing out of time, it must be shown that the person applying has been unable to support themselves without an income tested pension, allowance, or benefit.
Parenting proceedings are not subject to any time limit, as long as the child is under eighteen years of age.
An appeal of an Order or decision of the Federal Circuit and Family Court of Australia must be made within 28 days, and is done by filing a Notice of Appeal and serving it on the other party. A Response to an Application for Appeal must be filed within 14 days of service of the Notice of Appeal.
An extension of these time limits can be sought in some circumstances. When considering an extension, the Court will consider the length and reasons for the delay, the disadvantage that the delay has caused the other party, the merit of the proposed Appeal, and the justice of granting or denying the Application.
Do you need help commencing or appealing proceedings in the Federal Circuit and Family Court of Australia?
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