Mcgregor

The Property Rights of Spouses Act stipulates that the time period for making an application for division of property is within 12 months from the grant of separation, decree of nullity, dissolution of marriage or termination of cohabitation. However, the act gives the court the discretion to extend the time for instituting those proceedings.

If the parties were granted decree absolute more than one year before the act took effect on April 1, 2006, is either ex-spouse likely to succeed on an application for extension of time to commence proceedings for division of property? Each case will not evoke the same response, because the peculiar circumstances of each will determine the outcome.

In one local case, a judge was of the view that the court had no jurisdiction to consider an application under the Property (Rights of Spouses) Act if the event (in that case, separation) occurred before the act became law. The separation had occurred two or four years before the act became law.

In one Australian case, P and A got married in 1972, separated in 1980 and were divorced in 1982. At the time of the divorce, P knew that she was entitled to apply for spousal maintenance and division of property within 12 months after divorce. She claimed that she opted not to do this, because there was an informal arrangement with A, and A had promised to look after her and their two children. P even claimed that A had promised to purchase a house for her and the two children, but A denied this.

Promise

By 1991, after A had remarried, P brought an application to institute proceedings out of time under the Family Law Act, 1975. In her affidavit in support of that application, P explained that she had relied on A's promise and that this was the reason for the delay. She also contended that she and the children would suffer hardship if the application was refused and that A would not be prejudiced if the application for division of property and maintenance was heard.

Despite the 10-year delay in making the application, P succeeded. The judge accepted P's evidence about the promises which had been made and was of the view that she had a good claim which should be heard. In balancing the hardships, the judge determined that the wife would suffer greater hardship if she was not granted permission to make the application.

A appealed against the decision and the full court of the Family Court of Australia dismissed the appeal and ordered A to pay costs to P within one month of the order.

While there are differences between the Family Act and the Property (Rights of Spouses Act), is a similar outcome possible in our local court? Our act does not state that considerations of delay, hardship and prejudice ought to guide the court on such an application, but wouldn't those factors be important to consider in the exercise of the discretion to extend time?