Cairns Divorce Lawyers | Family Lawyers

Is there a time limit to apply for a property settlement?

You can apply to the court for a property settlement as soon as you are separated from your partner, but you must do so within certain time limits:

  • if you were in a de facto relationship, you must file an application in the court within two years of the date of separation
  • if you are married but separated (and not yet divorced), you can apply for a property settlement, and there is no time limit
  • if you are divorced, you must file an application within 12 months of the date of divorce.

There are very limited circumstances in which you can apply for an extension of time, and an extension is not guaranteed.

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Recent developments in family law

Property settlement: Breadwinners v homemakers

In 2015, the Full Court of the Family Court considered the weight that should be placed on contributions made by a primary “breadwinner”, in comparison to contributions made as homemaker and parent, in determining a fair property settlement. 

The court considered how the contributions of these two traditional roles within a family should be assessed.

Fields & Smith[1], handed down on 17 April 2015, was a landmark decision that solidifies the view that the court should not automatically value the contributions of the primary breadwinner as more important than those of the homemaker and primary parent.

It is now clear, especially in long relationships, that the role of the person that produced the majority of the income during the relationship is no more significant than the role of the person whose contributions were primarily as homemaker and/or parent.

Of course, we are increasingly seeing a shift away from the “traditional family”, and it is becoming more common to see a blurring of these traditional roles of homemaker and breadwinner. We must remember that the Fields & Smith decision does not create a presumption of equal contributions in lengthy relationships - it is often the case that a person who has enjoyed a higher income has also made significant contributions to the welfare of the family, and as a parent. The primary carer of the children will often have made significant financial contributions to the relationship as well. Therefore, contributions must still be assessed on a case by case basis.

What Fields & Smith does is make clear that Section 79 of the Family Law Act in no way suggests that financial contributions have a greater intrinsic value than contributions made to the welfare of the family. The circumstances of the case are somewhat unusual, but the decision will affect how the courts will determine what weight to place on contributions made by parties to longer relationships.  This case arose from a relationship of 29 years in which the parties started out with minimal assets, but amassed a property pool of almost $40 million by the time they separated.  The husband was the primary earner in the relationship, with the wife caring for the children and the home.

Call our experienced Cairns Family Lawyers on 07 4052 0700 for advice on your entitlements.

 

[1] Fields & Smith [1] [2015] FamCAFC 57

 

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