Morgan and Flanagan

The Family Court of Australia considered an application by Ms Morgan (the wife) for leave to commence property settlement proceedings out of time against Mr Flanagan (the husband). The parties separated in April/May 2010, and their divorce order took effect in December 2011. Under section 44(3) of the *Family Law Act 1975* (Cth), the wife was required to commence property proceedings within 12 months of the divorce order, meaning by December 2012. Her application for leave was filed in January 2014, just over a year after the deadline. The husband opposed the wife's application.

The primary legal issue before the Court was whether to grant the wife leave to institute property proceedings out of time. This required the Court to determine two broad questions: first, whether the wife had demonstrated that hardship would be caused to her or a child of the marriage if leave were not granted; and second, if hardship was established, whether the Court should exercise its discretion to grant leave. The Court noted that hardship in this context means substantial detriment, and relevant factors include the applicant's reasonable case, the parties' financial circumstances, and other relevant facts. If hardship is found, the Court then considers the length of the delay, the explanation for it, any prejudice to the respondent, and other discretionary factors.

The Court found that the wife had demonstrated hardship. She is 54 years old, receives a disability pension, and has primary care of the parties' 15-year-old child, for whom the husband pays minimal child support. The wife asserted that she had made significant financial advances to the husband and incurred substantial borrowings secured against her property for his benefit. Her property was subsequently sold, and she now lives in impecunious circumstances, with limited assets and debts including school fees and legal costs. The Court also found that the wife had an arguable case for significant contributions to the relationship and potential adjustment factors under section 75(2) of the Act, particularly concerning her health, the child's care, and the husband's superannuation. The husband did not assert any prejudice if leave were granted.

Consequently, the Court granted the wife leave to institute property proceedings out of time. The husband was ordered to file and serve a response and financial statement within 14 days, and the matter was listed for directions to facilitate a conciliation conference.