In the recent case of Vega & Riggs
the Court had cause to consider whether proceedings could be bought in relation
to a property division some 20 years after the parties separated.
The parties were married in 1979, separated in 1990 and were
divorced in November 1992. Any application for property division was therefore
required to have been made by November 1993. No such application was made.
The husband commenced proceedings in 2015. The primary asset
in dispute was a property the parties owned together.
Section 44 of the Family Law Act 1975 provides that the
Court can grant leave for proceedings to be commenced out of time if it is
satisfied that "hardship would be caused to a party … if leave were not
granted".
The Court stated that two questions needed to be determined:
1) whether the Court is satisfied that hardship would be caused to the husband
and 2) should the Court exercise its discretion to grant leave.
The Court stated that the test of hardship could be
satisfied if the husband could establish a prima facie case that he has a claim
of some significance to pursue and that he would be consequently worse off if
leave was not granted for him to pursue that claim.
The Court heard that the husband had contributed to the
purchase of the property, contributed his income during the marriage and had
continued to pay for the mortgage and other outgoings since separation. The
husband had lived in the property since separation. The husband, now 70, had
significantly more constrained financial circumstances in 2015 than the wife.
The Court accepted that the husband had a prima facie claim
and that he would be worse off if he could not pursue his claim.
In determining the second question of whether the Court
should exercise its discretion the Court found that although there had been a
delay of some 20 years the parties had in fact been in negotiations off and on
during that period and that they had both participated in the delay.
The Court granted leave for the application to be made.
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