Court Leave Explained
Missing the deadline for property settlement is more common than you think.
If the time limit has already expired, you may still be allowed to proceed — but you must apply for court leave (also called “leave to proceed out of time”).
This guide explains exactly how court leave works, who can apply, what evidence you need, and your chances of success in 2025.
1️⃣ What Are the Time Limits for Property Settlement?
Under the Family Law Act 1975, strict deadlines apply:
You must start property settlement within 12 months of divorce.
You must file within 2 years of separation.
If you’re outside these limits, you cannot file unless the court grants leave to proceed out of time.
2️⃣ What Is Court Leave?
Court leave is special permission from the Federal Circuit and Family Court of Australia allowing you to start a financial case after the legal deadline has expired.
It is not automatic — you must prove that refusing leave would cause hardship.
3️⃣ The Legal Test for Court Leave
To succeed, the applicant must show:
A. Hardship
You would suffer serious disadvantage if the court does not allow your case to proceed.
Examples include:
- Missing out on assets you contributed to
- Being left with nothing after a long relationship
- Children being financially disadvantaged
B. A Reasonable Explanation for the Delay
Courts accept explanations such as:
- Family violence or coercive control
- Financial control by the other party
- Not knowing your legal rights
- Mental health issues
- Illness, trauma, or instability
- Ongoing negotiations that fell through
The court considers fairness on both sides.
4️⃣ Evidence You Need for a Strong Out-of-Time Application
Your affidavit should include:
✔ Full relationship timeline
✔ Date of separation
✔ Date divorce became final (if applicable)
✔ Detailed reasons for delay
✔ Contributions (financial + non-financial)
✔ Assets, liabilities, and superannuation
✔ Evidence of hardship
✔ Evidence of family violence (if relevant)
✔ Attempts at negotiation
✔ Impact on children
The more detailed the affidavit, the stronger your application.
5️⃣ How Long Is “Too Long” to Apply?
There is no strict limit.
Successful cases include:
- 2–5 years out of time → common
- 10+ years → possible with strong hardship evidence
- 20+ years → granted in rare cases (usually involving family violence or children)
The key factor is hardship, not how many years have passed.
6️⃣ Can My Ex Oppose the Application?
Yes.
They can file material arguing:
- You deliberately delayed
- You knew your rights
- They would suffer unfairness
- Their financial circumstances have changed
- Assets have been sold or transferred
The judge weighs fairness to both parties.
7️⃣ What Happens If Leave Is Granted?
If the judge allows your application:
✔ You may immediately file your property settlement application
✔ The case proceeds like any other financial matter
✔ The court will likely order mediation
✔ A final property division will follow
Granting leave does not guarantee you a particular financial outcome — it simply lets your case proceed.
8️⃣ What Happens If Leave Is Refused?
If leave is refused:
❌ Your case ends permanently
❌ You cannot pursue property settlement
❌ You may receive nothing from the asset pool
❌ You cannot apply again
This is why proper legal preparation is essential.
9️⃣ Should You Get Legal Advice First?
Absolutely.
Court leave applications require technical affidavit drafting, case law analysis, and strong evidence.
Mistakes can cause your application to fail.
Adams United Lawyers we assist clients nationwide with preparing and filing out-of-time property settlement applications.
⚖️ Need Help Applying for Court Leave?
We offer:
✔ Fixed-fee advice
✔ Affidavit preparation
✔ Negotiation
✔ Evidence drafting
✔ National family law service#
Seek expert legal advice and explore your options with an experienced lawyer
Adams United Lawyers 1800 407 792
