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Financial Settlement 10 Years After Divorce - Too Late?

Monday 31st May 2021

By: Georgina Gregory

Lambertson[2021] FamCAFC 48 (12 April 2021) 

In this recent Full Court Decision, the husband appealed against Orders that allowed the wife to make an application for financial settlement, despite it being 10 years after their divorce – and, therefore, out of time.

The husband and wife had divorced in 2007 and had agreed between themselves that the wife would retain 60% of the sale proceeds of the parties’ real estate.  The wife claimed that it was also agreed that she should receive $255,000 (52%) of the husband’s superannuation.

In 2009 the husband applied to the Court for parenting orders.  In her response, the wife sought leave from the Court to proceed with an application for financial orders out of time (since it was over 12 months since the parties’ divorce).  The parenting proceedings were subsequently finalised by consent in 2011.  However, the wife abandoned her property settlement application by failing to file her court documents in support of a financial claim against the husband, prior to the trial.

In 2018, nearly 10 years later, the wife filed another application for the Court’s leave to proceed with her property settlement application, seeking 52% of the husband’s superannuation.

The trial Judge granted the wife leave to proceed with her application out of time, even though:

  •     The previous solicitors' file had been destroyed
  •     The wife's explanation for the delay was "weak"

However, the Full Court noted the following issues:

  •     the facts and consequences of the wife’s abandonment of her earlier application for leave to proceed with her property settlement application ought to have been addressed, together with the wife’s failure to explain her 7 year delay in taking action.
  •    whether the wife took all reasonable steps to pursue her claim or whether she acted as if she had no intention of pursuing any claim against the husband (as claimed by the husband).
  •     the fact that the wife did not raise the issue of her property settlement claim when the parenting proceedings were finalised in 2011.
  •     The previous solicitors’ file had been destroyed and this file contained details of the original (informal) financial agreement between the parties, details of the negotiations and their agreement as to superannuation.  

The Full Court allowed the husband’s appeal, but remitted the case to the Federal Circuit Court for re-hearing (rather than dismissing the wife’s application for property settlement).



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