Is there a time limit for property settlement in Australia?
Yes, there generally is. Family law sets out time limits for applying to the court about property, and they are different for married couples and de facto couples.
It helps to hold two ideas apart. A time limit is about when you can apply to the court. It is not a deadline for reaching agreement with your former partner. Many people settle property by agreement without ever going near a court. But the clock matters because it protects your ability to ask the court to decide, if agreement does not work.
The first clock: 12 months after a divorce, for married couples
If you were married, the time limit to apply to the court for a property settlement generally runs for 12 months from the date your divorce order takes effect.
That date is not the day you filed, and it is not the day of the hearing. A divorce order generally takes effect a month and a day after it is made. So the date to look for is the one on your divorce order, plus that short gap. If you are unsure which date applies to you, check your paperwork or ask us.
This is the point where most people are caught out. The divorce feels like the finish line, so everything else gets put aside. It is worth noting the date somewhere safe the moment your divorce comes through.
The second clock: two years after separation, for de facto couples
If you were in a de facto relationship, there is no divorce. The time limit generally runs for two years from the date the relationship ended.
De facto couples are treated in much the same way as married couples when it comes to dividing property. The difference is that the clock starts on separation, not on a divorce order. If you are not sure whether your relationship counts as de facto, or when it ended, that is a good question to raise early, because the answer shapes everything that follows.
Three real-life examples of how the clocks can work
Every situation is different, and these are general illustrations only, not advice. They show how the same two ideas, that divorce and property are separate and that the clock has a trigger, play out in practice.
Example 1: You separated five years ago and agreed things verbally
You and your partner separated five years ago. You talked it through and agreed to share everything fairly, and you both stayed involved in raising your teenage children. Nothing was written down. Now one of you wants to finalise the divorce.
A verbal agreement, however sincere, is generally not legally binding. If you were married, the 12-month property time limit generally runs from the date the divorce takes effect, so the clock has not started yet. That means a property settlement is still open to you, even five years on. What changes is the financial picture. Five years is a long time. Superannuation has grown, the home may have increased or decreased in value, and one of you may have earned or saved a great deal more than the other. Property is generally looked at as it stands now, together with what each of you has contributed over the years, including since separation. What you agreed verbally is not forgotten, but it is not locked in either. A conversation with a lawyer before the divorce is filed can help you understand the options.
Example 2: You separated a long time ago and never did a formal property settlement
This is more common than you might think. Life moved on, you each rebuilt, and no one ever formalised anything.
The first question is whether the clock has started. If you were married and have never divorced, the 12-month limit generally has not started, because it runs from the date a divorce takes effect. If you were married and a divorce took effect more than 12 months ago, or you were in a de facto relationship that ended more than two years ago, the time limit may have passed. In some circumstances the court can give permission to apply out of time, but it depends on the facts and cannot be assumed. Either way, living without a formal settlement can leave loose ends, such as jointly owned property, joint debts and superannuation. It is worth finding out where you stand rather than guessing.
Example 3: You settled property quickly, but the divorce came three years later
You and your former partner sorted out the property soon after separating. You were slower to apply for the divorce, and now, three years on, one of you has filed. In the meantime, one of your financial situations has changed considerably, but you are still legally married.
What matters here is how the property settlement was made. If it was made legally binding, through consent orders or a binding financial agreement, it generally stands, regardless of how your finances have changed since. A divorce does not reopen it. If it was only an informal agreement, the position is different: it is not legally binding, and the 12-month time limit would generally run from the date the divorce takes effect. If you are not sure which of these describes your situation, that is worth checking before the divorce is finalised.
Why the date of separation still matters
Even for married couples, the date of separation matters. It is the starting point for the 12 months of separation needed before you can apply for a divorce. Keeping a clear record of when you separated, and noting any period spent living under one roof, can make later steps simpler.
If you are working out where you are in the bigger picture, our guide to the five stages of separation and our free check, Where Am I in My Separation?, can help you see which steps are sorted and which are still open.
What if the time limit has already passed?
First, please do not panic. Some people in this position are still able to do something, and others find the time limit was never the issue they feared.
In some circumstances, a person can ask the court for permission to apply out of time. Whether that is possible depends on the specific facts, and it is not a step to count on. This is not something we would want to guess at in a general article, and it is exactly the kind of question to take to a family lawyer as soon as you can.
If you think you may be out of time, the most useful thing you can do is get advice quickly. Every day matters more once a deadline has passed.
Do I need to apply to court to settle property?
No. Most people do not need to go to court. Property can be settled by agreement, with or without lawyers, and then made legally binding through consent orders or a binding financial agreement. Our guide to binding financial agreements and consent orders explains the difference.
Mediation is also a calm way to reach agreement. 90% of matters Village Family Lawyers supports through mediation resolve without court proceedings. The time limit simply keeps the option of court open while you work things out.
What property settlement involves
Property is generally looked at in four steps: identifying and valuing everything in the asset pool, assessing each person’s contributions (financial and non-financial), considering future needs, and then asking what is just and equitable. Superannuation is part of the picture. If you want more on how this works, see how property is divided after separation and our property settlement page.
