Accessing Funds & Financial Support

After separation and before a Property Division, the financially stronger spouse usually has an obligation to support the financially weaker spouse. If you have the lower income, care of young children or you suffer from illness/injury, we can help you to claim funds from your ex immediately after separation.

We will help you claim your rightful entitlement to financial support from your high-earning ex after separation.

Our experienced Family Lawyers can help you access funds immediately after separation so you get the financial support you need, by an application for:

  • Spousal Maintenance,
  • Partial Property Division,
  • Litigation Funding Orders, and/or
  • Legal Fee Loans.

Early Legal & Financial Advice is Critical

The things you do at the very beginning of your Family Law property matter can have a profound impact on the way your matter runs. You need to know early on what your rights and obligations are under the Family Law Act so that you can put yourself in the best position to achieve a favourable outcome.

Your ability to access funds for legal fees and self support is critical to the success of your Family Law matter.

If you are concerned about how you will make ends meet following separation, it is crucial that you seek early advice in relation to whether or not you are likely to be successful in a Spousal Maintenance Application, Partial Property Division and Litigation Funding Order.

If we are of the view that you are entitled to Spousal Maintenance, we can quickly file your Application with the Court.

If you are concerned about how you are going to fund your Family Law litigation we can help you make an Application for a Litigation Funding Order.

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Spousal Maintenance

Spousal Maintenance is a payment (lump sum or periodic) paid by the financially-stronger spouse to the financially-weaker spouse after separation and usually up until the Property Division (however, in special cases it can continue indefinitely).

A financially-stronger spouse is obligated to pay for the needs of the financially-weaker spouse as much as they can afford to do. The needs of the financially-weaker spouse might include weekly payments for living expenses and a lump sum for the payment of a rental bond.

Spousal Maintenance is not meant to cover the costs of the care of the children. The costs of care of the children are meant to be covered by Child Support payments (see our Child Support page), Spousal Maintenance is only meant for the costs of the person receiving it.

We can assist you to claim urgent Spousal Maintenance immediately after separation, with a further and more extensive Application to be made to the Court for its consideration in due course.

Partial Property Division

After separation, and before Property Division (which may occur many months after separation), financial stress can arise because your wealth is tied up in the assets that are awaiting division between you and your ex. We can help you to access these funds through a partial Property Division. This is usually by agreement with the other party where they receive the same amount as you, and the amount that each person has received is included as part of their ultimate entitlement to the property pool.

For example, if your house is sold and the proceeds of sale can’t yet be divided between you because you can’t agree on how much each person is entitled to, each of you can agree to take $20,000 of the sale proceeds with this amount factored in as money already received when the remaining sale proceeds are ultimately divided between you.

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Litigation Funding Orders

A Litigation Funding Order is a type of Order that can be made to level the playing field in relation to the parties’ financial ability to fund legal costs of Family Law Court proceedings.

To correct the imbalance, the financially-weaker party is entitled to claim a lump sum from the financially-stronger spouse to go towards their legal fees. This payment can be $10,000 or $500,000, depending on the size of the property pool and the likely legal fees.

We can help you to make this claim and to get access to funds that you’re entitled to so that you can properly argue your case.

Legal Fee Loans

Where you need money for legal fees, it may be quicker and more cost-effective to make an Application for a legal fee loan. This is a loan for your Family Law legal fees so that you have money to properly pursue your case. The loan can also be used for living expenses and the purchase of assets, such as a car.

The financier usually does not require any repayment until your Property Division is finalised and they take repayment of the loan from your share of the property pool, such as from the proceeds of the sale of property.

It is quite easy to qualify for a litigation funding loan. Usually, the financier requires a clear understanding of the property pool and they will ask us to complete an outline of what we think, as your Family Lawyers, you are entitled to. On this basis, the financier will usually lend up to 1/4 to 1/3 of your overall entitlement to the property pool.

Time Limits

There are important time limits to bear in mind when considering an Application for a Family Law Property Division and/or Spousal Maintenance. These are:

  • For a marriage – 1 year from the date a Divorce Order becomes final.
  • For a de facto relationship – 2 years from the date of separation.

There are limited exceptions to the time limits, so it is best speak to your Family Lawyer if you think you have run out of time.

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Frequently Asked Questions

If I don’t have access to any funds, can I obtain a partial property settlement?

Parties can have a partial property settlement by agreement. This may be appropriate in circumstances where parties are in need of funds and are still in the process of negotiating a settlement or parties have applied to the Court and a final hearing is not for a considerable amount of time.

If one of the parties is not willing to agree to a partial property settlement, the other party can apply to the Court for an interim Order. For example, if you need access to funds in a bank account for living, housing or legal costs. However, the Court will not make an Order for a partial property settlement unless it is satisfied that it is appropriate in the circumstances.

Can I apply for Spousal Maintenance if I was in a de facto relationship?

Yes. If your de facto relationship can be classified as a de facto relationship under the Family Law Act, and you meet the requirements for Spousal Maintenance under the Act, you may be entitled to Spousal Maintenance.

If I get a job, will it reduce my entitlement to Spousal Maintenance?

Yes, generally your entitlement will be reduced as your ex-partner will make an Application to the Court to reduce how much Spousal Maintenance they must pay to you on the basis of your increased income.

Is Spousal Maintenance considered income for tax purposes?

No, Spousal Maintenance is not considered taxable income.

Do I have to inform Centrelink if I am receiving Spousal Maintenance?

Yes, you must inform Centrelink of any entitlement to Spousal Maintenance. Spousal Maintenance is not included by Centrelink in assessing income support, however, it is included in the assessment of family payments.

How can I get Spousal Maintenance?

Unless you and your ex-partner can agree, you will need to make an Application to the Court for a Spousal Maintenance Order. This can be a costly Application to pursue so must be considered carefully.

Am I entitled to Spousal Maintenance?

You may be entitled to Spousal Maintenance if you can prove that you do not have the capacity to earn enough income to support yourself properly. However, choosing not to work or to exercise a capacity to earn sufficient income will not entitle you to Spousal Maintenance.

Further, you will be unlikely to get an Order for Spousal Maintenance if you have sufficient resources (other than income) to support yourself, such as access to a savings account or other assets.

The first step in establishing whether or not you may be entitled to Spousal Maintenance payments is to overcome the ‘threshold test’ which asks 2 questions:

  1. Are you unable to ‘adequately support’ yourself on your income; and
  2. Is the other party ‘reasonably able’ to pay you?

If it is determined that you are not able to ‘adequately’ support yourself and that the other party is ‘reasonably’ able to pay you, then the Court will give consideration to the extent to which your ex-partner should reasonably be expected to support you, i.e. how much should they pay you? This will ultimately involve an examination of your living expenses and those of your ex-partners.

How much is the amount of Spousal Maintenance?

In determining the amount of Spousal Maintenance to be paid, the Court will give consideration to a standard of living that is reasonable in all the circumstances. However, “reasonable” does not necessarily mean the standard of living enjoyed prior to the breakdown of the relationship.

If the Court determines that your ex-partner should pay you Spousal Maintenance, it will then give consideration to how much your ex-partner should reasonably have to pay you. This ultimately involves an examination of his/her income and expenses.

How soon can I make a Spousal Maintenance Application?

Immediately after separation. Spousal Maintenance may be paid:

  • On an urgent basis until resolution of the Property Division,
  • As a lump sum at the time of the Property Division, and/or
  • Periodically for a number of years following the Property Division (however, this is unusual).