De Facto Property Settlement (Applicant) - Western Australia - Out of Time Application - Hardship Leave (s 205ZB(2))

Jurisdiction: Family Court of Western Australia. This fork proceeds in two stages - first the hardship leave interlocutory application, then (if leave is granted) the substantive property proceedings resuming from the standard pathway.

The Process at a Glance: Calculate how many days have elapsed since the 2-year limitation deadline expired. Prepare and file an urgent interlocutory application for leave supported by a dedicated Hardship Affidavit. The affidavit must demonstrate a substantial detriment to the applicant if leave is refused, that the claim has real prospects of success, and that after deducting litigation costs the applicant would be materially better off. The court determines the leave application on a threshold basis before ordering any disclosure. If leave is granted, file the Initiating Application and resume the standard pathway. If leave is refused, the property claim is permanently statute-barred.

Key Legislation and Case Law: Section 205ZB(1) of the Family Court Act 1997 (WA) - 2-year limitation from separation date. Section 205ZB(2) - hardship leave standard. If a binding financial agreement was set aside under s 205ZO, the applicable limitation period is 12 months from the date of the set-aside order. The hardship test is strictly applied: hardship does not mean proof of poverty; the mere loss of the right to litigate without more does not establish hardship; the applicant must demonstrate substantial detriment and a meritorious claim with real prospects of success leaving the applicant materially better off after costs. Hardship is a gateway threshold determined before broad financial disclosure is ordered.

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