Section 44(3) of the Family Law Act 1975 (Cth) (the Act) provides that after the expiration of 12 months from the date on which a divorce order takes effect, property proceedings cannot be instituted by a party without the leave of the court. Such leave will not be granted unless the court is satisfied that a spouse or child of the marriage would be caused hardship if leave was not granted (Section 44(4) of the Act) or if the parties consent.

Two recent cases indicate that, in certain circumstances, it will be unnecessary for an ‘out-of-time’ applicant to seek leave and prove hardship.

In the Full Court decision of Hedley & Hedley [2009] FamCAFC 179, neither the husband nor wife instituted property proceedings within 12 months of their divorce. However, two years later the husband filed an application seeking parenting orders. The wife filed a response to his application which sought that she be granted leave to make an application for property settlement.

On appeal, the wife relied on section 44(2) which reads:

“Notwithstanding subsections (3) and (3A), a respondent may, in answer to an application, include an application for any decree or declaration under this Act.”

It was submitted on the wife’s behalf that this section enabled her to seek property orders outside the 12 month time frame without seeking leave under section 44(3).

The court unanimously agreed that leave under section 44(3) was not required by the wife because a response to an application under section 44(2) is not to be read subject to section 44(3). The court considered that, if this was the intention, it would have been easy to provide that section 44(2) was to be subject to section 44(3).

A later Full Court decision of Anderson & McIntosh [2013] FamCAFC 200, concerned a divorce which had taken effect overseas on 28 December 2010. Orders for property settlement were made overseas in relation to foreign property, but not in relation to property situated in Australia. The wife filed an application in Australia seeking orders for property settlement almost 18 months after the divorce, on 10 July 2012.

As mentioned above, ordinarily, to institute proceedings outside the 12 month time limit, the wife would have been required to seek leave under section 44(3) of the Act. However, it was submitted on the wife’s behalf, that section 44(3) had no application to a foreign divorce.

The Full Court, agreeing with the wife, found that no part of the Act, including the definition of “matrimonial cause”, would lead to the conclusion that the term “divorce order” should apply to a divorce obtained overseas (by order or otherwise). The Full Court noted that term “divorce order” is used consistently throughout the Family Law Act 1975 (Cth) and is used only by reference to a process involving a termination of marriage under the Family Law Act 1975 (Cth). Therefore, the Court considered that the Family Law Act 1975 (Cth) clearly provided a limitation period for Australian divorces only. The wife’s application was consequently found to be properly instituted.

It should be noted that divorced parties may bring an application for property proceedings outside of the 12 month time limit if both parties consent. Interestingly, parties to a de facto relationship, who must bring an application within two years of the end of the de facto relationship pursuant to section 44(5) of the Act, do not have the ability to bring an application outside this time with the consent of both parties. Therefore, parties to a de facto relationship may only bring an application outside the 2 year time limit by seeking leave due to hardship or if they bring themselves within the parameters considered by the Full Court in Hedley & Hedley [2009] FamCAFC 179.