A complete guide to seeking leave to proceed with Property Settlement under the Family Law Act 1975 (Cth)
Miss the property settlement deadline and the door does not slam shut automatically. However, it does not stay open either. You must ask the Court for permission. That permission is called leave. Put simply, no leave, no case. This guide explains when leave is required, the legal test, what the Court actually cares about, and how to avoid getting knocked out early.
First things first: when do you need leave?
Everything starts with limitation periods. Miss them and you trigger the leave requirement.
Married couples
Once a divorce becomes final, you have 12 months to commence property settlement or spousal maintenance proceedings. That rule sits in section 44(3) of the Family Law Act.
Proceedings started after 12 months are barred unless:
- both parties consent, or
- the Court grants leave.
Importantly, the Court can grant leave before or after proceedings are filed. Timing alone does not save or sink you.
De facto couples
For de facto relationships, the general rule is 2 years from separation. If that period expires, leave is required under section 44(6) before any property settlement or maintenance claim can proceed. So, whether married or de facto, the logic is the same. Out of time means permission first, arguments later.
The legal test: hardship or nothing
This is where most applications fail.
Married couples
Under section 44(4), the Court must not grant leave unless refusing leave would cause hardship to:
- a party, or
- a child of the relationship.
There is no workaround. No hardship means no leave.
De facto couples
The same concept applies under section 44(6). Different subsection. Same burden.
Now, to be clear, hardship does not mean:
- disappointment
- inconvenience
- wanting another bite at the cherry
Hardship means real, practical injustice. If refusal leaves you shut out of assets you materially contributed to, burdened with debts, or unable to properly house children, you may be in territory that matters. If it just leaves you unhappy with the deal you accepted or ignored, you are not.
Consent helps, but it does not guarantee survival
Yes, parties can consent to starting proceedings out of time. However, the Court still has a gatekeeping role. If consent was obtained by fraud, duress, or unconscionable conduct, the Court can dismiss the proceedings anyway if allowing them to continue would cause a miscarriage of justice. In short, private agreement does not override judicial supervision.
What the Court actually considers in practice
Although the statute focuses on hardship, the Court looks at the full picture. In particular:
First, the length of delay
A short delay is easier to justify. A long delay demands stronger evidence. Delay alone is not fatal, but silence is.
Next, the explanation for delay
The Court expects a clear, chronological explanation.
Health issues, family violence, being misled, or ongoing negotiations can matter. Laziness does not.
Then, hardship if leave is refused
This is the centrepiece. You must show what you lose permanently if the door stays closed.
After that, the merits of the property claim
The Court will not grant leave for a hopeless case. You do not need to prove you will win. You do need to show the claim is genuinely arguable.
Finally, prejudice to the other party
If assets are gone, records destroyed, or third parties involved, you must address it head-on. Ignoring prejudice is a fast way to lose credibility.
A 2025 FCFCOA reality check
In Hallett & Hallett [2025] FedCFamC2F 745, the Court refused to grant leave for out-of- time property and spousal maintenance proceedings. The application failed. The proceedings went nowhere. The lesson is simple. The Court will not rescue poorly prepared cases. If hardship is not properly established, the application ends early and abruptly.
Now compare the above case with the case of Pearce & Pearce [2025] FedCFamC2F 571. In this case Judge Turnbull granted leave to the Applicant Husband pursuant to section 44(3) of the Family Law Act 1975 (Cth) to bring an Application pursuant to section 79, out of time. This is the case where the applicant Husband was out of time by 4 years. Judge Turnbull was satisfied that the he Applicant, and indirectly X, will suffer hardship if he is not provided with leave to file his application for relief pursuant to section 79 of the Act, out of time. Judge Turnbull was also satisfied that the Respondent will not suffer such prejudice that it would not be in the interests of justice for leave to be granted.
6. How to run a proper leave application
Step one: lock in the correct limitation date
- Married couples: count from the date the divorce became final.
- De facto couples: count from the date of final separation.
Do not guess. Get this wrong and everything else collapses.
Step two: frame the orders correctly
You normally seek:
- leave to commence property settlement proceedings out of time, and
- directions for the substantive property case to proceed.
Half-formed orders signal a half-formed case.
Step three: prepare an affidavit that answers the test
Your affidavit should cover:
1. A clean timeline
Relationship, separation, divorce, negotiations, and delay.
2. Reasons for delay
Specific. Dated. Supported by documents.
3. Hardship
What you lose if refused. Quantify it. Tie it to children where relevant.
4. Merits of the property claim
Asset pool, contributions, and why the claim is worth hearing.
5. Prejudice
What the other side will argue and why the Court should still grant leave.
This is not a venting exercise. It is evidence.
Step four: file properly
Usually, you file an Initiating Application supported by affidavit material. Yes, the Court can grant leave even after proceedings are instituted. That does not excuse sloppy filing.
Step five: treat the first return date seriously
At the first hearing, the Court may:
- decide leave immediately, or
- order further evidence, or
- dismiss the application outright.
There is no warm-up lap.
Common mistakes that sink applications
- No real evidence of hardship
- Vague explanations for years of delay
- No asset pool analysis
- No arguable property case
- Ignoring prejudice
- Turning affidavits into emotional manifestos
Courts do not reward drama. They reward precision.
Practical strategy tips
Accordingly:
- File as soon as you realise you are out of time. Delay compounds risk.
- If coercion or family violence played a role, prove it properly.
- If negotiations dragged on, produce the paper trail.
- Always ask yourself one question:
“What injustice occurs if leave is refused?”
Then prove it.
Being out of time is not fatal. Being unprepared is. If you need leave to proceed with a property settlement, you get one real shot to persuade the Court. Weak applications get dismissed. Strong ones move forward.
Pannu Lawyers is consistently ranked as the Best Family Lawyers in Sydney. If you need clear advice on whether leave is achievable and how the Court is likely to rule, speak to us early.