May 21, 2020

Limitation Periods and Family Law

Jonathan Lowe  

Imagine you have separated from your de-facto partner and you have been forced to leave with nothing. Rather than taking action against your partner to divide your property, you decide to wait and let the situation calm down.  When you finally get around to meeting with your lawyer you discover you have waited too long – you’ve missed the limitation period!

What is a limitation period you ask?

Limitation periods are dates by which a cause of action must have been commenced.  They are periods of time set by parliament that operate to restrict a person starting legal action after that period of time has expired.

Limitation periods are important and a reminder that people should seek legal advice promptly.

There is good reasoning behind this.  If causes of action were able to be commenced at any time the whole administration of justice would be impacted.  For example, witnesses may not be available or may be asked to give evidence on matters that are so long ago that the accuracy of their evidence would be severely impacted.  If someone delays for years and years in taking any action, the other party should be able to comfortably conclude that the matter is at an end.  In this respect a limitation period weighs up the interests of the parties and sets prescribed periods to encourage parties to pursue their claims promptly when the causes of action arise so that the courts can effectively operate.

In a Family Law context, the main limitation periods to be mindful of are:

Married Couples

The limitation period to resolve property and financial matters expires twelve months from the date the Divorce Order takes effect (also known as decree nisi). If the married couple separate but have not divorced the limitation period will not have commenced but you should still seek legal advice early because delay in taking action could still negatively impact your case.

De Facto Couples

For de facto couples the situation is different and parties will have two years from the date of separation to pursue any action in relation to a property or financial settlement following the break down of their relationship.  Sometimes the date of separation is in dispute so it is always a good idea to seek legal advice early following your separation.

I’ve missed the limitation period, is there anything I can do?

In circumstances where the parties have missed the limitation period, permission of the Court (known as leave) is required before proceedings can be instituted.  In each case the factors that the Court will consider will be different but, broadly speaking, the Courts will consider:

  1. The length of the delay
  2. The reasons for the delay
  3. The strengths and weaknesses of the case being brought
  4. The prejudice to be occasioned to the other party
  5. The degree of hardship that would be suffered if leave were not granted.

In the Family Law context, section 44 of the Family Law Act deals with limitation periods.  For de facto couples, the court may grant leave (that is the Court has discretion as to whether they will allow the action to be commenced) for a party to commence outside the limitation period if:

  •   hardship would be caused to the party or a child if leave were not granted; or
  • (b)    in the case of an application for an order for the maintenance of the party–the party‘s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

When determining the issue of hardship, the Courts will consider the various factors outlined above, such as length of delay etc.  When parties dispute the date of separation, which is the trigger for the limitation period, this can add a further layer of complexity.

If you were in a de facto relationship and have separated, you should obtain legal advice soon after your separation to determine if there is a cause of action for a property or financial settlement. Likewise if you are divorced and have not finalised a property settlement, you should obtain independent legal advice. If parties do not comply with the limitation periods there is a very real possibility that they will not be allowed to pursue a cause of action, in which case they may suffer significant loss.

Other limitation periods to be aware of in New South Wales are:

Consumer Claims

Consumer claims pursuant to the Australian Consumer Law, 6 years after the date the cause of action accrues.

General Contract Law

6 years from the date of which the cause of action accrues or 12 years if the cause of action if founded on a Deed.

Defamation Cases

For matters after 2006 – 1 year from the date of publication.

Family Provision Applications

Within 12 months from the date of passing of the deceased.

The above represents only a very small list of limitation periods for different causes of action in New South Wales and the Commonwealth. If you have a cause of action which you have delayed pursuing you should obtain independent legal advice to determine whether your cause of action could be impacted by a limitation period.

Applying to the Court to commence an action outside of a limitation period or indeed defending claims to commence outside a limitation period are complex matters and can have significant consequences.  If you find yourself in this difficult position you should seek legal advice.

Contact Mbt Lawyers if you think you have a cause of action, or if someone is taking action against you after a considerable delay.

*This article does not include every possible cause of action, nor every limitation period, nor does it comprehensively describe the limitation periods. It is not intended to provide particular legal advice to readers and you should always seek your own independent advice to determine the accuracy and application of the information contained in this article to your own circumstances.*

02 6648 7600