The Family Law Act 1975 (Cth) permits some late property claims. Without the other party’s consent to the application, the applicant needs the Court’s permission, known as leave. Hardship is central to that decision.
Borys & Borys [2026] FedCFamC1A 160, decided on 10 September 2026, concerns another important question: the scope of permission to bring a late claim. The Court’s published summary identifies a dispute about restricting leave to superannuation issues and records that the appeal was allowed by consent.
The standard time limits
The usual filing periods depend on whether the parties were married or in a de facto relationship.
| Relationship | When the period starts | Usual time limit |
| Marriage | When the divorce order takes effect | 12 months |
| De facto relationship | When the relationship ends | 2 years |
For married parties, separation alone does not start the ordinary 12-month period. Property matters can be addressed before divorce. For de facto parties, the end of the relationship is the relevant event, so evidence of that date can be important.
These are filing deadlines. Negotiations or an intention to settle should not be treated as an extension of time. A different statutory period may apply after a financial agreement is set aside or found invalid, so those cases require separate advice.
When the Court may grant leave
Sections 44(3) and 44(4)(a) govern married parties’ late property claims; sections 44(5) and 44(6)(a) govern de facto claims. Hardship must arise from refusing leave and may affect a party or a child.
The Court considers two questions. First, has the applicant established hardship? If so, should the Court exercise its discretion to grant leave in the circumstances? Satisfying the first question does not guarantee a favourable answer to the second.
Maintenance applicants have an additional pathway if, when the relevant period expired, they could not support themselves without an income-tested pension, allowance or benefit. This alternative does not apply to property adjustment claims.
What hardship requires
The loss of the opportunity to bring proceedings does not, by itself, establish hardship. The Court examines the consequences of losing that opportunity. The applicant needs a prima facie claim worth pursuing, with a real probability of success, and must explain how the likely relief would address the hardship. The leave hearing does not finally decide the property case.
A useful application connects the claimed entitlement to the applicant’s circumstances. For example, evidence might explain how the absence of a meaningful settlement affects housing or the ability to meet expenses. The applicant should identify the financial and non-financial contributions supporting the claim, rather than simply asserting that the existing arrangement feels unfair.
The practical value of the proposed claim also deserves attention. Obtain an assessment of the likely range of outcomes, the available evidence and the expected costs before deciding whether to seek leave.
How delay and prejudice affect the decision?
Once hardship is established, relevant considerations include the length and explanation of the delay, prejudice caused by it, the strength of the proposed claim and the degree of hardship if leave is refused. These considerations are assessed together.
Slocomb & Hedgewood [2015] FamCAFC 219 illustrates the point. The Full Court allowed a late property application after a delay it described as approximately 18 years. It explained that an inadequate explanation for delay is a factor in the discretion, rather than an automatic bar.
The parties’ circumstances and the injustice of leaving their financial position unresolved remained important. [3]
For someone applying late, a clear chronology is essential. If illness, financial constraints, family violence or reliance on negotiations contributed to the delay, explain what happened and how it affected the ability to act. Include supporting documents where available and address any period when those difficulties no longer prevented action.
For someone opposing leave, identify the actual consequences of the delay. Lost records, unavailable witnesses or financial decisions made over the intervening years may need examination. The response should also engage with the claimed hardship and the proposed property case, rather than relying only on the number of years that have passed.
The issue raised in Borys and Borys
The official summary of Borys identifies a de facto property dispute about whether the primary judge could limit leave under section 44(6) to superannuation issues in an application under section 90SM. The appeal was allowed by consent.
Read alongside section 90SM, that issue illustrates why the scope of a late application matters. The statutory property assessment requires identification of the parties’ existing property interests and liabilities, together with consideration of contributions and current and future circumstances. An order must also be just and equitable.
For clients, the practical point is to prepare the complete financial picture, even where superannuation is the main unresolved asset. The relief ultimately sought might concentrate on a superannuation adjustment, but that proposal still needs to be assessed against the other property, debts and relevant circumstances.
Permission to bring the claim and the final property decision serve different purposes.
Granting leave does not establish a particular percentage entitlement or guarantee a superannuation split. The substantive claim still has to be determined under the applicable property provisions.
Preparing a late application
The Court’s Financial Proceedings Practice Direction requires an applicant seeking leave to request it as an interlocutory order in the application and file an affidavit setting out the supporting facts. The usual financial filing and disclosure requirements also need attention.
Before preparing the affidavit, collect the material needed to answer the central questions:
- Confirm the relationship history, the divorce effective date or de facto separation date,
and the applicable deadline. - Prepare a chronology explaining the whole period of delay, with relevant
correspondence and supporting records. - Identify the proposed property orders and the contributions and circumstances said to
justify them. - Explain the concrete hardship that refusal would cause to the applicant or a child.
- Prepareabalancesheetcovering property, superannuation and liabilities, and address
any alleged prejudice to the other party.
Section 44 also allows a late application with both parties’ consent. Agreement to negotiate should not be assumed to constitute that consent. Record the parties’ position properly and ensure the proposed orders meet the Court’s requirements.
Seek advice before further time passes
If the deadline is approaching, seek advice promptly about protecting the claim while discussions continue. If it has already expired, obtain advice on hardship, the explanation for delay and the practical merits of seeking leave. Further delay can make the evidence harder to assemble.
At Pannu Lawyers, we can advise on the applicable time limit, assess a proposed application for leave and assist with the affidavit and financial material needed to present the case.
This article provides general information about property settlement applications in NSW. It is not advice about an individual matter