Family Law Blog

The Ex-Factor – An unexpected return

Posted by on 1 Feb 2012

It’s been a year since the divorce  was formalised(or two since the de facto relationship ended), the experience, along with the whole package has long been packed, dusted and consciously (or subconsciously) put to rest in the deepest darkest cavern of your memories, finally over.

Or is it?

Could a return, like that shadow of doubt you may have, be lurking somewhere slowly taking form.

It could be.

Like many, you may have used section 44(3) of the Family Law Act 1975 (the one providing that former spouses have 12 months from the date of their divorce to commence property settlement proceedings before they are out of time) or section 44(5) (for de facto relationships, which provides for two years from the date the relationship ended) as your shield, your comforter against those doubts. But like every stronghold, there is a ‘weakness’ we don’t see, or don’t want to see, those little trap doors in that shield of protection, capable of being flung open at anytime.

While your Ex may have been out of time in commencing property proceedings, proceedings can still be commenced, if the Court is satisfied that hardship can be caused to them, or to a child of the relationship, if leave is not granted.

Also if you decide to commence proceedings for non-property related matters, say parenting issues down the track, your Ex can hitch the property wagon to the trial trail without the need to satisfy the Court that hardship was suffered.

The answer to this dilemma is to ensure that you and/or your current partner, have formalised all property agreements with your Ex in writing, whether by Consent Orders or a Binding Financial Agreement*  even if the agreement says that everyone is entitled to what they currently have. These relatively quick Agreements can ensure that you are well protected and the shadows well rested. 

* (see our articles Misconceptions in Legal Lingo and The “Oscar Curse”: Hollywood myth or unfortunate reality? for further information on these)