As with most things in the law, the answer is yes, but then again, no.  Let me explain –

The party in a marriage or a de-facto relationship who issues Court proceedings (the “applicant”) is said to have the “carriage of the matter”.  That means, in a Conciliation Conference (a meeting with a Court Registrar to try to settle a property case), the applicant or their lawyer “goes first” in putting their case to the Registrar.  Similarly, if the case goes to a Court hearing, the applicant presents their case to the Judge first.  However, the applicant “going first” does not necessarily disadvantage the other party (the “respondent”) as the respondent “goes last” therefore having the final say to the Judge at the end of the case.

However, there are other situations where it is wise to issue a Family Law Application rather than wait for the other side to do so.  One such situation is determined by the Family Law Act itself.  It is a requirement of the Act that a person who wants to issue an Application for property settlement or spousal maintenance must do so within 12 months of a Divorce Order becoming final.  While that sounds definite, there is a section in the Act that says that the 12 months can be extended in some circumstances. However, you should not “dice with death” – get the matter issued in the Court before the 12 months runs out or, in the case of a de-facto relationship, within 2 years of the relationship ending.

A recent Court case highlighted that it is a good idea to issue a Court Application sooner, rather than later.  The husband and the wife had been separated but living under the same roof at their property in country Victoria.  No-one had issued Court proceedings for a property settlement.  One day, the husband, while operating farm machinery, was severely injured.  He was taken to hospital in a critical condition.  At about 4.00 o’clock that afternoon, the wife contacted her lawyer and explained the situation.  The lawyer advised her that she should make an immediate Application to the Federal Circuit Court for a property settlement.  He took her instructions, prepared the necessary documents for the Court and, at approximately 7.30 that night (like all good lawyers, he worked late on behalf of his client) he filed the documents on the Court’s online “portal” system.  The husband died at 11.00 o’clock that night.  All OK with the wife’s Application?  Unfortunately for her, no.  The Court contacted the wife’s lawyer the next morning to advise that, as the Registry had closed at 4.30 the previous afternoon, the documents were not officially filed until it re-opened at 9.30 the next day, by which time the husband had been dead for some 10½ hours.  The law says that you cannot issue a Family Law Application after a party has died but, if you issue and the other partner later dies, their estate can continue with the case.

While this was an unusual, even bizarre case, delaying issuing Court proceedings in a property case can cause other problems. We often see clients who, for various reasons, put off finalising their property settlement after their relationship breaks down. There can be many valid reasons for not immediately taking action – so as not to disturb school aged children who are living in the house, because one party feels guilty about the breakup of the relationship, or simply because they do not feel ready to start negotiating a settlement. However, any significant delay (if mediation or negotiation have failed to achieve a settlement) between parties separating and issuing a property Application may result in one or both of the parties getting on with their lives such as re-partnering, having more children or buying and selling real estate. This makes reaching a settlement with the other party, either in court or out of court, significantly difficult. Courts do not necessarily simply draw a line at the time of separation and ignore any assets bought or sold afterwards.

So, the moral of the story is:

  • Think about starting the process for a property settlement sooner rather than later – you may be surprised how helpful and understanding your Family Lawyer will be.

Richard Tonkin