Property settlement time limits
after separation.

For married couples, an application for property or financial orders arising from the marriage must generally be commenced within 12 months after the divorce order takes effect. The Federal Circuit and Family Court of Australia publishes this as the general limit.

• The period does not usually run from the date of separation.
• It runs from the date the divorce becomes final.
• A divorce order commonly takes effect one month and one day after the hearing, unless the Court orders otherwise.
• Property settlement can be negotiated and formalised before divorce is even applied for.

Not every divorce order takes effect on the same day. The relevant date should always be confirmed from the divorce order itself.

For de facto couples, an application for property or financial orders arising from the relationship must generally be commenced within two years after the breakdown of the relationship. This is the general limit identified in the Court's published guidance.

• The relevant date — when the relationship broke down — may itself be disputed.
• Separation may be gradual, or may occur while the parties are still living under one roof.
• Evidence about the separation date can become important if there is disagreement.
• An uncertain separation date should not be assumed to provide extra time.

Where the date of breakdown is unclear, it is generally safer to work from the earliest plausible date rather than the latest.

Married parties can usually begin property negotiations before applying for divorce. Waiting until after the divorce order takes effect may, in practice, reduce the time available to commence proceedings later.

• Consent orders can be sought after separation.
• Negotiation, mediation and disclosure can all proceed before divorce.
• Divorce itself does not divide property.
• Beginning the property conversation earlier often produces a more considered outcome.

For the wider framework, see Assets, debts and the family home.

A divorce order is not necessarily final on the hearing date. In most cases it takes effect one month and one day after the hearing. The operative date should be checked on the divorce order itself, and the 12-month period is calculated from the date the order takes effect.

This guide does not address situations where a divorce order has been varied, rescinded or made overseas. Those scenarios involve additional considerations and specific legal advice is appropriate. For a wider treatment of when a divorce becomes final, see the divorce cornerstone guide.

The breakdown date is often a question of evidence. Matters that may be considered include:

• What was communicated between the parties.
• Changes in living arrangements.
• Financial separation.
• Domestic arrangements.
• The public presentation of the relationship.
• Whether the parties continued living together.
• Any later attempt at reconciliation.

No single factor is decisive in every case. The breakdown date is generally assessed on the whole picture rather than on one event in isolation.

The relevant issue is generally the commencement of the required court application within time. Other steps, while important, do not necessarily preserve a person's right to commence proceedings after the limitation period expires. Those other steps include:

• Having discussions.
• Exchanging letters.
• Attending mediation.
• Obtaining valuations.
• Reaching an informal agreement.
• Instructing a lawyer.

Negotiations alone do not stop the clock. Specific procedural advice about what must be filed, and how, should be obtained from a lawyer.

An Application for Consent Orders concerning property or maintenance should generally be filed within the same applicable period:

• 12 months after a divorce order takes effect for married parties.
• Two years after the breakdown of a de facto relationship.

The Court states that consent-order applications can be filed after separation but should be filed within those periods. An agreed settlement should not be left undocumented simply because negotiations have concluded — an agreement that is not formalised in time can become significantly harder to give effect to.

A person may seek the Court's permission, often described as leave, to commence proceedings out of time. The Court's guidance confirms that an applicant seeking to start financial or property proceedings outside the prescribed time must ask for leave and provide affidavit evidence supporting that request.

• Permission is not automatic.
• An additional application and supporting evidence may be required.
• Delay, hardship and the explanation for delay may be relevant.
• The prospects and circumstances of the claim need to be assessed.
• The other party may oppose the application.
• Cost and uncertainty generally increase once the deadline has passed.

An out-of-time application is a separate piece of work in addition to the substantive property claim, and should not be assumed to succeed.

At a high level, the Court may consider whether refusing permission would cause hardship. The concept is used carefully and is not the same as inconvenience.

• Hardship is generally something more than inconvenience.
• Hardship does not guarantee leave.
• The Court may consider whether there is a real claim to pursue.
• The reason for the delay may matter.
• Prejudice to the other party may also be relevant.
• Each case depends on its own facts.

This guide does not attempt to state a definitive legal test or reproduce case-law formulations. The point is that "the deadline has passed" is not the end of every conversation, but it is not the start of an easy one either.

Even where a deadline is not immediately approaching, delay tends to create practical difficulty:

• Records may be lost.
• Asset values may change.
• Property may be sold or refinanced.
• Businesses may change.
• Witnesses may become unavailable.
• Debts may increase.
• Parties may reorganise their finances.
• Limitation issues may arise.
• Negotiations may become more difficult.

None of this is a reason for alarm. It is a reason to address the property conversation at a sensible pace rather than at the last possible moment.

Additional issues can arise where:

• The divorce occurred overseas.
• The de facto relationship involved more than one state or country.
• Property is located overseas.
• Jurisdiction is disputed.
• The relationship was connected to Western Australia.

Jurisdictional rules can differ, and the limitation analysis can be more involved. Specific advice should be obtained. This guide does not attempt a detailed Western Australian analysis.

Similar limitation periods can apply to spousal or de facto maintenance applications:

• Generally 12 months after a divorce order takes effect for a former spouse.
• Generally two years after the breakdown of a de facto relationship.

The Court publishes those same general limits for maintenance applications. Maintenance and property settlement are distinct issues, but the limitation timing often overlaps in practice.

Ongoing negotiations do not necessarily stop the limitation period. Practical steps that may be appropriate include:

• Confirming the deadline.
• Obtaining legal advice on the timing.
• Considering whether an application must be filed protectively.
• Continuing negotiation or mediation in parallel.
• Documenting any agreement properly once reached.

The right answer is not to commence proceedings in every case. It is to make sure the timing question is being considered rather than overlooked. For more on resolving property settlement without a contested court hearing, see the dedicated guide.

A few recurring assumptions are worth correcting carefully:

• "The deadline runs from separation for married couples." For married couples, the general 12-month period runs from the date the divorce order takes effect, not from separation.
• "I cannot deal with property until I am divorced." Property settlement can usually be progressed before any divorce application is made.
• "Negotiations stop the clock." Negotiations, mediation and letters do not necessarily preserve the right to commence proceedings.
• "An informal agreement is enough." An informal agreement is not the same as formalised consent orders or a properly drafted financial agreement.
• "If the deadline has passed, nothing can be done." The Court's leave may be sought, but it is not automatic.
• "The Court will automatically grant an extension." Leave is discretionary and requires supporting evidence.
• "The same time limit applies to every relationship." The limit depends on whether the relationship was a marriage or a de facto relationship.

A concise list to work through carefully:

1. Identify whether the relationship was a marriage or a de facto relationship.
2. Record the separation date.
3. Obtain the divorce order if divorced.
4. Check the date the divorce order took effect.
5. Calculate the likely limitation date.
6. Gather financial records.
7. Do not rely on negotiations alone to preserve rights.
8. Formalise any agreement properly.
9. Seek advice well before the deadline.
10. Obtain urgent advice if the deadline may have passed.

For broader practical first steps after separation, see A calm first checklist. For closer treatment of related property-settlement topics, see keeping the family home after separation and superannuation after separation. Further material on formalising arrangements will appear in the Divorce and Financial agreements guide categories as those guides are published.