Property settlement is a crucial aspect of family law following separation or divorce. However, many people aren’t aware that strict time limits apply when seeking a property settlement through the courts.
Can You Apply For Property Settlement After Separation Time Limits Have Passed?
Yes, in some cases, it may still be possible to apply for a property division. At the same time, it may not be possible, so please ensure you get some legal advice as soon as possible.
This guide walks you through what property settlement involves, the time limits and what to do if those limits have passed.
Property Rights for De Facto Couples
De facto couples have the same rights as married couples when it comes to property settlement. A de facto relationship is recognised if you have lived together on a genuine domestic basis, regardless of gender.
After separation, de facto couples must resolve property matters within specific timeframes, just like married couples.
Key Timeframes
- Married couples must apply to the court for property settlement or spousal maintenance within 12 months of their divorce becoming final.
- De facto couples must apply within 2 years of the relationship breakdown.
If these limits have passed, you’ll need special permission from the court, known as “leave”, to proceed.
Property Proceedings After Divorce Or Separation
‘Property settlement’ is the process by which Australian Family Law addresses financial matters after a significant relationship ends. The Family Law Act 1975 governs how property and finances are divided after the breakdown of a marriage or de facto relationship. Whether you’re dividing a home, superannuation, debts or other assets, understanding your rights is essential.
Some family law property rules have changed since 10 June 2025, so it’s especially important to get up-to-date legal advice. Family law property cases are handled by the Federal Circuit and Family Court of Australia. If you’ve missed a time limit for property settlement, applying to the court may still be possible, but specific criteria must be met.
What Counts As “Property”?
In family law, property includes all assets and debts, whether owned individually or jointly. This can include:
- The family home and other real estate
- Cars and personal items
- Superannuation
- Bank accounts and investments
- Loans, mortgages, and credit card debts
Property settlement means dividing this pool fairly, not necessarily equally.
How Is Property Divided After A Breakup?
After separation, property is divided between you and your former partner based on fairness. It’s not automatically a 50/50 split. The family law courts (except in Western Australia for de facto couples) consider the total asset pool, including property, superannuation and personal debts. Each person’s contributions, financial or otherwise, and future needs are assessed.
Separating couples can make a financial agreement, or the court can issue property orders. You must disclose full financial details, such as bank statements and tax returns. It’s often complex and time-consuming, so legal advice is recommended to protect your rights and reach a fair outcome.
Financial Disclosure & Contributions
When dividing property after a separation, full financial disclosure is a critical first step. This means that both parties are legally required to share comprehensive information about their income, assets, liabilities, and financial resources. Documents such as bank statements, tax returns, and superannuation balances must be provided. This transparency ensures that the court, or the parties themselves, if reaching an agreement, can identify the property to be divided fairly.
In determining a just property settlement, the court considers a range of contributions made by each person during the relationship. These include direct financial contributions, such as salaries and payments toward the mortgage, and indirect financial contributions, such as improvements to property or managing finances. Importantly, non-financial contributions, like raising children, homemaking or caring for a partner, are equally valued. The goal is not just to count dollars, but to recognise the broader contributions each person made to the relationship and household.
Can You Still Apply After The Time Limit?
Yes, but only in limited circumstances.
The court may allow a late application if it agrees that there are exceptional circumstances:
- Hardship would be caused to a party or child if permission is not granted
- A party has a legitimate explanation for the delay (such as serious illness, family violence or lack of legal knowledge)
- Unable to locate or serve the ex-partner with the required documents
- The other party won’t suffer unreasonable prejudice from the delay
You’ll need to provide evidence explaining the delay and showing that a property claim is still appropriate. The courts will decide on a case-by-case basis, and there is no guarantee that they will grant approval.
Steps to Take If You’ve Missed the Deadline
If you think the time limit has passed, here’s what to do:
Get Legal Advice Immediately
A family lawyer can assess your situation and advise whether you may still have a valid claim.
Gather Financial Documents
Start collecting financial records, income, assets, liabilities and superannuation to support your case.
Prepare an Application for Leave
Your lawyer will help you file an application seeking permission to apply out of time, including an explanation for the delay.
Attend Court & Present Your Case
The court will assess your application based on hardship, delay reasons, and whether a fair outcome is still possible.
Long-Term Separation Without Divorce: Can You Still Settle Property?
If you’ve been separated for 12 years but not divorced, you can still apply for a property settlement under Australian family law. There is no time limit until a divorce order is made—only then does a strict 12-month deadline apply to start proceedings.
The court will assess the current asset pool, not just what existed at separation, and consider each party’s contributions and future needs. Delays can complicate matters, especially if property has changed hands, or the property pool has significantly increased or decreased on one or both parties’ sides. It’s essential to seek legal advice early to protect your interests before applying for divorce or finalising any agreements.
Child Support & Spousal Maintenance: Time Limits & Processes
Child support and spousal maintenance are both forms of financial support available after separation, but they operate under different legal frameworks and time limits. Child support is administered by Services Australia (Child Support), not the courts. Either parent can apply for a child support assessment at any time, regardless of the stage of separation or divorce.
The amount is calculated based on each parent’s income, care arrangements, and the number of children. Child support remains payable until the child turns 18 or longer if the child is still in full-time secondary education.
Spousal maintenance, on the other hand, falls under family law property settlement rules. It is financial support for a former partner who cannot support themselves adequately. A spousal maintenance application must generally be made within 12 months of a divorce order becoming final, or within two years of the end of a de facto relationship. The court will assess each party’s financial needs and capacity to pay, and orders may be made for a fixed term or indefinitely.
Bankruptcy and Property Settlement: Implications and Time Limits
Bankruptcy can significantly impact property settlement in family law proceedings. Although bankruptcy and family law are governed by different legal systems, the Family Law Act allows the court to consider bankruptcy issues when making property or financial orders between separating couples.
If one party is bankrupt (or becomes bankrupt during proceedings), the bankruptcy trustee may become involved, especially where shared assets, such as the family home, are at stake. The court can determine how property should be divided, even if assets have vested in the trustee. However, certain debts, like personal liabilities or tax debts, may complicate the process and limit what property can be recovered or shared.
There is no specific time limit for the court to consider bankruptcy during property settlement, but property settlement applications themselves are subject to strict deadlines: 12 months after a divorce order is final, or two years after the end of a de facto relationship. If these deadlines are missed, special permission from the court is required to proceed.
Because the intersection between bankruptcy and family law is complex, and outcomes can affect both creditors and former partners, it’s strongly advised to seek specialist legal advice early to protect your financial position and understand your rights.
Caveats and Third-Party Interests in Property Settlement
In family law, caveats play an essential role in protecting a party’s interest in real property during a property settlement dispute. A caveat is a legal notice lodged with the land titles office that effectively prevents the sale or transfer of a property without the caveator’s consent. It alerts others that someone has a financial interest in the land, such as a former partner seeking a fair share of the property after separation.
Third-party interests, such as those held by banks, family members or business partners, can also be affected by court decisions in property settlement proceedings. For example, a mortgage held by a bank or a loan from a relative may influence how the court divides the asset pool. The Family Law Act allows courts to join third parties to proceedings where appropriate, and orders can sometimes override other interests in exceptional circumstances.
While there is no specific time limit for lodging a caveat, delaying action can risk loss of rights or the sale of the property. It is important to seek timely legal advice to understand how to register a caveat properly and manage third-party claims when negotiating or litigating property matters.
Next Steps For Making A Property Settlement After Time Limits
Property settlement after separation can be legally and emotionally complex. It involves careful consideration of financial disclosure, individual contributions and each party’s unique circumstances.
Courts assess all relevant evidence to reach a just and equitable outcome, but understanding your rights, time limits, and obligations is essential to protecting your interests. Whether you’re negotiating with a former partner or preparing for court, it’s essential to seek proper legal advice to successfully manage your property settlement proceedings after separation, particularly if time limits have passed.
