Time Limit for Property Settlement After Divorce

When a relationship ends, sorting out who keeps what can wait while you find your feet. It is worth knowing, though, that the family law system in Australia puts a clock on property settlement. If you let that clock run out, you may need the court's permission just to start, and that permission is not guaranteed. This article explains the time limits clearly so you can plan with confidence. It is general information only, not legal advice for your situation.

The 12-month rule after divorce

If you were married and you have a divorce order, you generally have 12 months from the date the divorce order takes effect to apply to the court for a property settlement or spousal maintenance. This time limit comes from section 44 of the Family Law Act 1975.

A divorce order usually takes effect one month and one day after the court makes it. So the 12-month clock starts from that effective date, not from the day of your court hearing and not from the day you separated.

A helpful point that often gets missed: you do not have to wait for a divorce to sort out property. You can reach an agreement or apply for property orders at any time after you separate. The 12-month limit only becomes relevant once a divorce order is in place.

De facto relationships: a 2-year limit

De facto couples also have a deadline, and it is a firm one. If your de facto relationship has broken down, you generally have two years from the date of separation to apply to the court for a property settlement or maintenance. This also sits under section 44 of the Family Law Act 1975.

Before a court can make property orders for a de facto couple, one of a few threshold conditions in section 90SB usually needs to be met. In broad terms, that means the relationship lasted at least two years in total, or there is a child of the relationship, or one partner made substantial contributions and a serious injustice would result if no order were made, or the relationship was registered under a state or territory scheme.

The law in Western Australia for de facto couples is administered differently, so if your relationship was based in WA it is worth getting advice specific to that state.

The deadline is about applying, not finishing

The time limit applies to starting your court application, not to finalising the whole settlement. If you file an application within the 12 months (for married couples) or two years (for de facto couples), you can keep negotiating and settling after that, even if the process takes longer. The key is to lodge in time.

What happens if you miss the deadline

If the time limit has passed, you can still ask the court for permission to proceed, known as seeking leave to apply out of time. You can also proceed if the other party consents.

Where there is no agreement, the court can grant leave only if it is satisfied that hardship would be caused to you or a child if it refused. Courts have treated hardship as something more than mere inconvenience or difficulty. Even where hardship is shown, the court still weighs other factors, such as the length of and reasons for the delay, the strength of your case, and any prejudice to the other party. In short, applying out of time is possible but uncertain, so it is far better to act within the limit.

Formalising an agreement: consent orders and binding financial agreements

Reaching an agreement is one thing. Making it legally binding is another. There are two main ways to formalise a property settlement in Australia.

Consent orders

If you agree, you can apply to the court for consent orders. The court reviews the proposed division and, if it is satisfied the orders are just and equitable, makes them. Consent orders are court orders, so they are enforceable.

Binding financial agreements

A binding financial agreement is a private contract between you and your former partner. It does not need the court's approval, but for it to be binding each of you must have received independent legal advice before signing.

Formalising your agreement properly matters. A informal handshake deal does not give you the certainty or protection that consent orders or a binding financial agreement do. For either option, independent legal advice is important, and for a binding financial agreement it is a legal requirement.

What you can do now

Work out your key date. For a marriage, find the date your divorce order took effect and count 12 months from there. For a de facto relationship, count two years from the date you separated.
Start gathering your financial information early, including assets, debts, superannuation, and income. Records are easier to find sooner rather than later.
Consider getting advice well before any deadline, so you have time to negotiate or, if needed, file in time.

Key takeaways

Married couples generally have 12 months from the date a divorce order takes effect to apply for property settlement or maintenance.
A divorce order usually takes effect one month and one day after it is made.
De facto couples generally have two years from separation to apply, and threshold conditions under section 90SB usually apply.
Filing an application in time protects your position even if negotiations continue afterwards.
If a deadline has passed, you can proceed only with the other party's consent or with the court's leave, which turns on hardship and is not guaranteed.
Agreements can be formalised as consent orders or a binding financial agreement, and a binding financial agreement requires independent legal advice for each party.

Knowing where you stand is the first step. If you would like a clearer picture of how a property division might look in your situation, Separately can walk you through an assessment, and formal settlements should always be finalised with independent legal advice.