As lawyers, we have long been aware of the “quirk” in the Family Law Act which allowed a Respondent party, who was otherwise “out of time”, to apply in their Response document for financial orders against the Applicant party, even if the Application made no reference to financial matters at all.
It has always seemed so unfair to me that someone did not pursue his or her entitlements under the Act but could then, many years later, be given a free pass because a whole new dispute has arisen. The “quirk” has certainly informed advice I have given to clients and has influenced their decisions about how best to approach their family law problems.
From late October last year, however, the offending section, section 44(2) of the Family Law Act, has been repealed. So what does this mean for parties to family law matters? It means that divorced couples have 12 months from the date their divorce becomes final to apply for orders for property settlement and/or spousal maintenance. After that 12 months expires, an application for financial orders under the Act can only be made if the leave of the Court to proceed out of time is first applied for and given. If one party applies for, for example, parenting orders after the 12 months has expired, the other party must apply for leave to proceed out of time if he or she wants to pursue financial orders under the Act. There is no longer the opportunity for the “free pass”.
There has been discussion and difference of opinion in our office (and beyond our office) about whether section 44(2) applied to de facto relationships. Repeal of the section means that de facto have 2 years after separation to apply for property adjustment orders or spousal maintenance. After that time, the same leave to proceed out of time is required and the other spouse is free to apply for other orders under the Act without the fear that it will give the former spouse that free pass to pursue financial relief without satisfying the requirements for leave to proceed out of time.
The amendments, to me, reflect what is a much fairer position for all. If you have an entitlement for financial relief under the Act, pursue it within the timeframes specified in the Family Law Act to avoid cost and risk. If BGM Family Lawyers can assist you with your family law problem, feel free to email me at Kate.Graham@bgm.legal.