Commencing Family Court proceedings can be daunting – not
only because it's an emotional time in your life, but because
of the high legal fees that can result from what can be a long and
drawn out process.
You might wonder, how will I be able to pay for a car, or
replacement furniture? How will I pay my pressing debts? Or my
In some circumstances, the Court will permit you (and/or your
spouse) to receive advances of funds along the way. These advances
are to pay for things which you might need in the short term or to
pay a pressing liability or for your legal fees. They come out of
the marital pool of assets, and are known as 'partial property
The word 'partial' refers to the fact that these
advances are not full and final property settlements. That will
come at the end of the family law process (either at a final
hearing, or a final settlement agreed between you and your spouse).
Rather, they are interim distributions to fund your expenses whilst
you are waiting for your final property settlement.
Of course, partial property settlements are not necessarily free
money. Any advances along the way may be deducted from your
entitlement at the end of the process.
A partial property settlement is not appropriate in all
circumstances. The most important factor is whether there will be
enough property remaining after the interim distribution to meet
the entitlements and reasonable expectations of both parties at the
final hearing (or settlement). Essentially, the court will only
grant you a partial property settlement if you are likely to
receive that amount or more at the end of the process. Therefore,
there is no harm in bringing the payment forward in time.
Sometimes the Court will not be able to say with confidence
whether there will be enough left in the pot at the end of the
process. This may be the case if there is doubt about whether a
party will be entitled to anything at all, or where there is doubt
about the true value of the assets to be distributed.
In these situations, it may still possible for one party to
obtain an order which enables him/her to continue funding the
litigation. There should be a level playing field between two
parties to the litigation. If one party can fund the litigation but
the other can't, the court may make a 'dollar for
dollar' order. That means that for every dollar the wealthier
party spends on legal fees, he/she must pay the other party an
equivalent sum which is to be applied to their legal costs. This
enables the litigation to continue on an equal footing.
Again, the less wealthy party will not be receiving free money.
Rather, the court will likely defer the characterisation of that
money to the final hearing (or settlement). It may be characterised
in any of the following ways:
as a debt due from the less wealthy party to the wealthy party;
as part of the less wealthy party's entitlement in a
property settlement; or
as a maintenance payment for the less wealthy party; or
as a factor taken into account, but for which no adjustment is
The family law system moves slowly. It can take up to 3 years
for a case to wind itself through the Court to a final judgment.
Many expensive hurdles have to be managed along the way. A partial
property settlement can provide parties with practical solutions to
cash shortages. These solutions allow parties to access money now,
but for those funds to be accounted for or characterised by the
Judge at a later date.
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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