Time limits for property claims — the 12-month and 2-year windows

The two windows — at a glance

These are the deadlines for applying for an order. They're not the deadlines for completing the settlement. As long as the application is filed within the window, the matter can resolve over a longer period.

The 12-month window for married couples

For married couples, the property and spousal maintenance windows run from the date the divorce order takes effect — which is one month and one day after the divorce hearing.

So the practical timeline:

1. Separate
2. Wait 12 months of separation
3. Apply for divorce
4. Court hearing (typically 6–8 weeks after filing)
5. Divorce order made at hearing
6. Divorce order takes effect one month and one day later
7. 12-month property/maintenance clock starts running on that date

The 12-month clock runs from step 6, not from any earlier date. If you separated three years ago, divorced 18 months ago, and the divorce took effect 17 months ago — you're 5 months past the deadline and need leave to apply.

Why this matters

The trap: many people don't realise the clock is running. They get divorced, get on with life, and only think about property settlement when something prompts it — refinancing, a new relationship, an inheritance, a deteriorating relationship with the former spouse.

If the 12 months has passed, applying becomes harder. (See "Out of time" below.)

Practical implication

If you're getting divorced and you haven't settled property:

• Settle property before or alongside the divorce. This is the cleanest path. The property settlement isn't subject to the divorce process; you can file consent orders or sign a BFA at any point.
• If property is going to be done after divorce, do it quickly. The 12-month clock is short. Don't let it run out by accident.

The 2-year window for de facto couples

For de facto couples, the clock runs from the date of separation — the date the relationship ended.

This is more straightforward than the married case (no intermediate divorce process), but it can also be harder to pin down, because the date of separation can be genuinely uncertain. Was it the day one party moved out? The day they decided not to reconcile? The day they told family and friends?

How the separation date is determined

For most de facto couples, the date of separation is reasonably clear — there was a moment, a conversation, a move-out. For some, it's contested. Indicators include:

• One party moving out
• Public communication of the separation (telling family, friends, employers)
• Separate finances established
• Separate social arrangements
• Separate sleeping arrangements (for separation under one roof)

For under-one-roof separations, the separation date is usually the date the parties agree they were "separated" — informed by the broader indicators above. Documenting the date contemporaneously is the protective move.

Practical implication

If you're a de facto couple who has separated and you haven't formalised the property settlement:

• Aim to formalise within the 2-year window. Apply for consent orders or sign a BFA before the deadline.
• If you're approaching the deadline, start the process now. The application has to be filed within the window; it doesn't all have to be resolved before then.
• If you've passed the deadline, you can still apply, but you'll need leave of the court. See below.

"Out of time" — what it actually means

Being out of time doesn't mean you can't make a property claim. It means you have to apply for leave (permission) of the court to bring the application late.

The court doesn't refuse late applications automatically. It considers whether to grant leave based on:

• Hardship to the applicant if refused — would refusing leave cause significant hardship?
• Why the application is late — is there a genuine explanation?
• Whether the delay has prejudiced the other party — has the other party arranged their affairs in reliance on the matter being closed?

Where these factors favour the applicant, leave is granted. Where they don't, leave is refused.

Granting leave is more likely where:

• Joint property still needs to be formally transferred. If there's a title that still needs changing, courts are very willing to grant leave even outside the window — because there's no other way to do it. In practice, leave is rarely refused in these circumstances.
• Both parties consent to the late application. Where both parties agree to the late filing, the court will almost always grant leave. The process becomes administrative rather than adversarial.
• The delay has a genuine explanation. Illness, ignorance of the deadline, ongoing negotiation that hadn't resolved.

Granting leave is less likely where:

• The other party opposes. The application becomes contested. The opposing party can argue the delay was unreasonable and that they've arranged their affairs in reliance on the matter being closed.
• The applicant can show no hardship. If refusing leave doesn't cause meaningful hardship — for example, where the asset pool is small and the applicant has financial resources — leave may be refused.
• The delay is very long. Years and years of inaction make leave harder to obtain.

Joint property and the late-leave question

If there's still joint property to deal with after the window has passed, the practical case for leave is strong.

The argument runs:

• The joint property can't be cleanly transferred without a court order or formal settlement
• Refusing leave leaves the parties in a stuck position — neither can act unilaterally on the joint property
• The cost of granting leave is small; the cost of refusing it is real

Where the parties both consent to the late filing and joint property is involved, leave is granted almost as a matter of course. The court is being asked to provide administrative authority for what the parties have already agreed.

Where the parties don't both consent — where one party has been silent or actively opposes — the case is harder, but joint property still tilts the analysis in favour of leave.

Costs and time of a late-leave application

A late-leave application is additional legal work on top of the property settlement itself. The application has to:

• Set out the reasons for the delay
• Demonstrate hardship if refused
• Address any prejudice to the other party
• Be filed with the court alongside the substantive property application

The cost of a leave application varies. For our purposes, the Essentials Consent Orders package isn't suitable for an out-of-time matter — Full Service is required because of the additional work in the leave application. The fee uplift reflects that.

If both parties consent to the late filing and no real dispute exists, the leave application is largely a matter of filing the right documents. If the other party opposes, costs can escalate.

What happens if I never apply?

If you never apply within the window and never seek leave to apply late:

• Your right to apply lapses. You can't make a property claim against your former partner.
• Your former partner can't make a claim against you either (subject to the same time limits).
• Joint property remains in joint names, with both parties retaining their formal ownership interests.
• Informal arrangements continue, with no court-enforceable backing.

For couples who have informally divided everything and there's nothing to formalise, this can be a workable position — though it leaves both parties exposed to the other party seeking leave to make a late claim later.

The risk with leaving things informal indefinitely: if your former partner's circumstances change (they remarry, they become bankrupt, they die), the informal arrangement can suddenly become contested by them or by their estate. The further from separation, the harder it is to reconstruct what was "agreed" if there's any dispute.

The recommendation: don't leave matters informal forever. If you have any meaningful joint assets, debts, or super disparities, formalisation provides certainty.

What if the other party makes a late claim against me?

If your former partner applies out of time for property orders or spousal maintenance against you:

• They have to apply for leave of the court
• You can oppose the leave application
• The court considers whether to grant leave based on the same factors above

If leave is granted, the substantive matter then proceeds. If leave is refused, the matter ends there.

The strategic position when opposing a late-leave application:

• The delay should be unjustified. A genuine explanation makes leave more likely.
• There should be prejudice to you. If you've arranged your affairs in reliance on the matter being closed (sold an asset, made other financial commitments, remarried), that's relevant.
• Hardship to the applicant if refused. If they can't show hardship, leave may be refused.

This is a contested application that needs legal representation. If you receive notice of a late-leave application from a former partner, get advice promptly.

Spousal maintenance — same windows

The 12-month and 2-year windows apply to spousal maintenance claims as well as property claims.

• Married couples — 12 months from the divorce order taking effect
• De facto couples — 2 years from separation

After those windows, the same leave-of-court process applies. The same factors are considered.

A BFA with a spousal maintenance set-off clause can lock out future maintenance claims entirely — within or outside the window — subject to the government-benefits exception. (See Spousal maintenance explained.)

When the BFA route is unaffected

The 12-month and 2-year windows apply to court applications — for property orders, spousal maintenance, or other family-law remedies the court can grant.

A BFA is a private contract. It doesn't depend on the court's jurisdiction. The time limits don't directly apply to BFAs in the same way.

So: where the court-application window has closed, a post-separation BFA may still be available as the formalisation mechanism — both parties just need to agree and engage. The BFA doesn't require leave of the court because it doesn't involve the court at all.

This is one of the situations where the BFA's structural difference from consent orders becomes practically useful. If you've missed the 2-year window for consent orders and the other party isn't keen to support a leave application, but they're willing to sign a BFA, the BFA can finalise things without the leave-application hurdle.

The trade-offs of the BFA still apply (higher cost, both parties need independent legal advice, no court fairness check), but the path can be open when the consent orders path has narrowed.

Other relevant deadlines (less commonly known)

A few additional deadlines worth flagging.

90-day signing window for consent order documents

Once consent order documents are drafted and signed, they must be lodged with the court within 90 days of signing. If the 90-day window lapses without lodgement, a new set of documents with updated figures has to be prepared and re-signed.

Don't sit on signed consent orders. Get them lodged.

28-day super fund review window

For super splits, the super fund has up to 28 days by law to review the proposed split (the Regulation 144 notice) before consent orders can be lodged. Best practice is to send the notice in parallel with drafting so the wait runs alongside rather than after.

12-month BFA grace period — there isn't one

Common misconception: there's a "12-month period to set aside a BFA after signing". There isn't. A BFA can be challenged on set-aside grounds at any time, subject to the usual legal limitation periods. The set-aside grounds (fraud, non-disclosure, duress, children-hardship, impracticability, improper execution) don't have an absolute statutory deadline. (See Setting aside a BFA.)

Limitation periods on enforcement

Once consent orders are sealed, breaches can be enforced. The standard contract limitation period (usually 6 years) applies to enforcing some aspects, though the family-law framework provides specific enforcement mechanisms that aren't strictly contract-based. For specific enforcement questions, get advice.

Common scenarios

"We separated 18 months ago. I haven't done anything formal. How long do I have?"

If you're de facto, you have 6 months left in the 2-year window. Get the consent orders process started now.

If you're married, the clock isn't running yet — it only starts when a divorce order takes effect. If you haven't applied for divorce, the window hasn't opened. But the longer you wait, the more your asset positions can drift apart, which makes settlement harder.

"We divorced 8 months ago and we still haven't sorted the house. Can we still do consent orders?"

Yes — you have 4 months left. Get the consent orders application underway promptly. The application has to be filed within the 12 months, but it doesn't all have to be resolved before then.

"We divorced 18 months ago. The house is still in joint names. Are we stuck?"

You're 6 months past the deadline. You'd need leave of the court to apply for property orders. Given there's still joint property to deal with, leave is likely to be granted — especially if your former spouse consents.

The cleaner path: agree with your former spouse on the consent orders terms, then make a joint leave application supported by consent. The court approves the leave (almost certainly given the joint property), and proceeds straight to making the consent orders.

If your former spouse won't cooperate, the path is harder — a contested leave application followed by a contested property settlement. Get legal advice before going further.

"I'm de facto, separated 3 years ago. Can I make a claim now?"

You're past the 2-year window. You'd need leave. If you have a strong reason for the delay (illness, ongoing negotiations that finally broke down, only just learned of a hidden asset) and there's hardship if leave is refused, you may get it. If your reasons are weak and your former partner opposes, the leave application may not succeed.

In either case, get advice promptly — the longer you wait, the harder it gets.

"My former partner is threatening to apply out of time. What do I do?"

Get advice immediately. You can oppose the leave application. The opposition would focus on:

• The reasons for the delay (if they're weak)
• Whether you'd be prejudiced if leave is granted (you've made financial decisions in reliance on the matter being closed)
• Whether they can show hardship if leave is refused

Opposed leave applications are contested matters that warrant proper representation.

"We're de facto and approaching the 2-year mark. Can we negotiate beyond it?"

You can negotiate at any time — the limit is on applying to the court, not on negotiating. If negotiations are progressing, you can either:

• Reach agreement and apply for consent orders within the window
• File a "protective" application within the window to preserve your position, then continue negotiating
• Use a BFA, which isn't subject to the court-application deadline at all

A protective filing is unusual but available. It's essentially a placeholder that buys you more time to negotiate while protecting your right to apply.

When the window matters most

Time limits matter most for parties with the more vulnerable position. If you're the lower-earning party, the party who didn't keep the family home, the party who didn't get the super, or the party who couldn't pay for legal advice early — the window running out leaves you with fewer options.

Acting within the window is always the safer move. The cost of acting early (engaging a lawyer, drafting an application) is small compared to the cost of a contested leave application later, or the cost of having no claim at all.