FAMILY LAW LITIGATION CAN BE A STRESSFUL AND DIFFICULT
Typically in family law matters there is a disparity between the
financial positions of the parties. One party may be struggling to
meet living expenses and legal costs after separation, while the
other party may have access to, and control the bulk of, the
Alternatively, one party may be worried that the other party is
deliberately eroding the assets or divesting themselves of
property, in an effort to thwart the other party's family law
Both of the above scenarios are clearly 'unfair' and
result from an imbalance in the parties' negotiating
This situation has long been identified by the Family Court as
unjust and the Court has said "There is...[a] highly
relevant matter that distinguishes litigation under the Family Law
Act from ordinary civil litigation: that is the fact that very
often the wealth of the parties is controlled by one rather than
both of them".
So what can be done to 'even' things
It is possible, in certain circumstances, to obtain Interim Orders
from the Court which provide for the premature distribution of
funds to one or both of the parties. This Order is made on an
interim basis and provides immediate funding to a party, to be
applied during the course of the litigation, while the balance of
the matter is determined by the Court.
Such an Order can relieve considerable financial strain and bring
the parties to a more 'equal' position, where they can both
financially support themselves and fund their family law
litigation, pending the final outcome. Orders can be made as
interim property orders or as interim costs orders, depending on
the circumstances of the matter.
The Court has complete discretion in determining applications
for interim funding and whether or not an Order is made will depend
on the specific circumstances of the case.
If a party can establish that:
there is a financial imbalance between the spouses;
there are funds available for immediate distribution;
one party needs access to the funds and the other party can
afford for the funds to be paid to that party; and
the amount sought by the claimant is less than the amount they
are likely to receive on a final basis,
then it is likely a Court would order an interim distribution of
funds in their favour. In those circumstances, we are often able to
avoid court proceedings by spelling out the law and our
client's needs, and negotiating an early release of funds by
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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