Understanding Time Limits in Family Law Matters

HHG Legal Group’s Senior Counsel, Dr Steve Cohen and Lawyer, Jordan Schweitzer, both from our Family Law team, explain limitation periods in the Family Court of WA.

Understanding Time Limits in Family Law Matters

Time limits in Family Law matters: When can you file in the Family Court of Western Australia?

Timing is vital when bringing a legal action; wait too long, and you may lose the right to commence legal proceedings. This is known as a “limitation period”.

Following the breakdown of a de facto relationship or marriage, the separating parties can bring legal proceedings in the Family Court of Western Australia (the Family Court) for property settlement, spousal maintenance, and parenting arrangements. Those legal proceedings must be brought within the limitation period, otherwise the parties’ may lose their right.

Parties must be aware of these time limits.

Limitation period to commence proceedings for property settlement or spousal maintenance

De facto couples must file an application in the Family Court within 2 years from the date of separation. The limitation period for married couples is 1 year from the date their divorce order takes effect.

If the parties reach an agreement, they can file a Form 11 Application for Consent Orders. The above limitation periods still apply depending on whether the parties were in a de facto relationship or were married.

If the limitation period expires, the separating parties lose the right to use the Family Court. However, a party can apply to the Family Court for leave to commence proceedings “out of time”. The Family Court may grant leave in circumstances of hardship. Importantly, hardship in this context is not limited to only financial difficulties and can extend to hardship of the family. Accordingly, in determining hardship, there are a number of factors the Family Court can consider. These include:

1. The length and reason of the delay in commencing proceedings.
2. The prejudice that may be suffered by the other party by reason of the delay.
3. The strength of the case being brought before the court by the applying party.
4. The degree of hardship the applying party would suffer if leave was not granted.

Although the limitation periods for married and de facto couples may appear straightforward, disputes can still arise. For example, de facto couples could dispute the date of separation, resulting in an uncertain limitation period. It is important to seek legal advice as soon as possible after separation to identify and address these potential issues to avoid a limitation period unintentionally expiring.

Limitation period to commence parenting proceedings

There is no limitation period, per se, for proceedings relating to parenting arrangements. This makes sense, as the needs of children (and their parents’ circumstances) are likely to change over time. The care arrangements put in place when children are young may not be appropriate or remain practicable as they grow older, resulting in a need to commence (or recommence) proceedings.

Accordingly, parenting proceedings can be commenced at any time before a child attains the age of 18 years, marries, or enters into a de facto relationship.

Pre-action procedures

Parties should also be aware of the steps required to be taken before proceedings can be commenced. These are known as pre-action procedures and require the parties to attempt to resolve their dispute between themselves prior to seeking intervention from the Family Court.

For parenting matters, pre-action procedures include attending upon a Family Dispute Resolution Practitioner to try and resolve the matter, or to obtain a Section 60I Certificate (certificate stating the parties have attended or attempted mediation) if the matter cannot be resolved.

For property matters, pre-action procedures include the exchanging of disclosure documents and the participation in dispute resolution.

If the limitation period is imminent, a party must consider whether they comply with pre-action procedures or to commence proceedings in the Family Court to preserve their legal rights.

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*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.