Delayed Property Disputes: Seeking Leave from Court for Property Orders
Property disputes can be a challenging and emotionally charged aspect of family law cases. When parties to a separation or divorce fail to reach an agreement regarding the division of their assets, seeking leave from the family court to make an application for property orders becomes necessary. This article explores the potential consequences of not settling a property dispute in a timely manner and delves into the process involved in seeking relief from the family court.
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Escalation of Conflict: One of the primary consequences of not settling a property dispute promptly is the escalation of conflict between the parties involved. As time passes, frustration and animosity often grow, making it increasingly difficult to reach an amicable resolution. This heightened tension can lead to prolonged litigation, substantial legal costs, and a more adversarial process overall.
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Financial Insecurity: Failure to resolve a property dispute leaves both parties uncertain regarding their financial futures. Until property orders are in place, neither party can have confidence in their entitlements or the division of assets. This uncertainty can hinder financial planning and create unnecessary stress.
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Unresolved Emotional Strain: The longer a property dispute remains unresolved, the greater the emotional strain it can place on both individuals involved. Prolonged uncertainty and ongoing legal battles can inhibit healing and the potential to move forward in separate lives.
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Potential Loss of Assets: By not settling a property dispute in a timely manner, there is a risk of losing assets or the opportunity to secure a fair division thereof. Delays could impact the value of assets or allow for the dissipation of assets by either party.
Time Constraints for Applying to Family Court
In Australia, if you are seeking property orders after separation, it is generally recommended to apply to the court within 12 months of your divorce becoming final, or within 2 years of the breakdown of a de facto relationship. These time limits are set out in the Family Law Act 1975. However, it's important to note that there are circumstances where the court may grant an extension of time if there are exceptional circumstances.
Seeking Leave from the Court to Initiate a Property Orders Application
You need to provide a few critical pieces of information when seeking leave from the Court to hear a property application after more than one year has passed since the divorce order, or two after a de facto relationship ended. These include:
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Your reason for the delay in making the property application.
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Information about the current financial circumstances of both parties, including income, assets, liabilities, and superannuation.
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An explanation of the contributions made by each party during the relationship, including financial and non-financial contributions.
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Information about the future needs of each party, such as their earning capacity, health, and care responsibilities.
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Any other relevant information or documents that can support your case.
This information can be included in your Form 1 Initiating Affidavit and includes demonstrating that an exception to the time limitation rules applies.
Reasons for a significant delay in reaching an agreement or filing an application might include, but not be limited to:
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Mental health stresses for either party, which stalled or otherwise prevented effective negotiations
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Financial hardship
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A party to the negotiation not being contactable, or their whereabouts were unknown.
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Bereavement, family dynamics, illness or anything else that hindered a party's decision-making capacity.
Applying for Consent Orders out of time
If you have reached a negotiated agreement out of time and wish to file an application for Consent Orders, you should include a cover letter setting out the reasons for the delayed application and make sure the first order establishes that leave be granted by the Court to seal the orders.
Leave Granted
Once leave is granted, the Court will allow the party to proceed with an application for property orders or parties who have reached an agreement to file an Application for Consent Orders.
In conclusion
Failing to settle a property dispute in a timely manner can have significant consequences for parties involved in separation or divorce and an adverse effect on the well-being of any children involved. Both parties should endeavour to do what is necessary to bring closure to the dispute and provide both parties with financial security and emotional peace. In most cases, pursuing a final outcome through mediation and respectful negotiations is appropriate to work towards a fair resolution and a fresh start in their post-separation lives. Where this breaks down, the negotiations have taken the timeframe since separation or divorce outside the accepted periods many parties have successfully sought to have their applications considered out of time.
Published by: Divorce Resource
Published by Christine Weston
Founding Director and Creator of Divorce Resource
Australian Nationally Accredited Mediator and Divorce Coach
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