Proceedings for an adjustment of property interests where the parties were married must be commenced within 12 months of the granting of a Certificate of Divorce (s44(3B)(c)) or within two years of separation for de facto relationships (s44(5)).  If it is outside of those time limitations then it is necessary to seek an extension of time to commence proceedings.

In Tripp & Allison (No 2) [2024] FedCFamC2F 1523 the parties had been negotiating post-divorce but had not yet reached an agreement and the limitation period expired before either party commenced proceedings.

The Wife was no longer residing in Australia, although she had been when seeking to commence proceedings, whilst the Husband was residing in Australia.  The parties had separated in 2020, after a 12-year relationship, and divorced on 21 April 2022.  The Wife sought to commence proceedings on 7 August 2023, around 3.5 months out of time.  The Husband opposed the granting of leave to the Wife to do so.  Curiously, there was very clear evidence that both parties were aware of the looming limitation date and email communication between the respective legal representatives suggested that the Husband had intended to commence proceedings 

The parties had owned property in NSW which had been sold in March 2023, with the net proceeds being held in the Trust Account of an Australian solicitor.  The total net asset pool was a little shy of $2,000,000.

The crux of the Husband’s objection appeared to be on the basis that the Wife ought to have commenced proceedings in the country where she now resided.  The matter was set down for an interlocutory hearing on 25 July 2024, by agreement that proceeded ‘on the papers’.

Having found against the Husband in respect of the appropriate venue Her Honour then turned her mind to the ‘hardship’ aspect of the case.  That is, whether hardship would be caused to the Wife or to the parties’ child if leave were not granted.  It was necessary, as part of that assessment to consider whether the Wife had a prima facie claim, not of a trifling nature, and whether that claim would not be extinguished by the legal costs of pursuing same.  Her Honour found that with the size of the asset pool the Wife’s claim was ‘by no means trifling’.

Leave was granted to the Wife and further directions made.