It is not uncommon that upon separation, one party controls the majority of the matrimonial assets. In addition to this, it is not unusual for one party to earn significantly more than the other. For these reasons, the party with greater access to assets or higher income tends to find it easier to preserve their lifestyle following a separation. In contrast, the other party struggles to find alternative accommodation or pay for their everyday expenses, which they can no longer afford to do. In these types of scenarios, it may be appropriate for interim property settlement orders to be made.
Preparing for an Interim Property Settlement Video
Interim Property Order
Interim property order is an order made before a final hearing that deals with a partial property settlement. An interim property order might be an order to
- distribute funds
- pay spousal maintenance
- sell assets
- disclose assets
How do I get an interim or partial property settlement?
You can apply to the court for a partial property settlement order. When you use to the court for a partial property settlement, you will need
- financial statement
- affidavit
- any other evidence to prove your case for a partial property settlement
Can you get an interim property settlement order to sell a house?
Yes. Suppose the application is for orders that a property is sold say if your ex is refusing to sell a house. The court will likely make that order if neither party can demonstrate their ability to re-mortgage the house into their sole name and then afford the mortgage repayments.
Can you get an interim property settlement order to buy a house?
Orders can be made for a cash amount to be given to one party for the sole purpose of converting that cash asset into real property. In the case of Sudono & Sudono [2010] FamCA 54, the court ordered that the husband give the wife half a million dollars to buy a house. However, the orders prohibited the wife from selling the property once she had it until the final property settlement occurred. This way, the value of the parties’ property pool still stayed the same. However, it provided the wife with accommodation that she would not have otherwise had if the court did not make the interim property settlement order. Ultimately, it did not affect the outcome of the final property settlement.
Can you get an interim property settlement order to pay legal fees?
Yes. There have been cases where the court has ordered one party to pay legal costs in the interim. An order to pay interim legal costs is known as a “Hogan Order” (named after Hogan’s leading case [1986] FamCA 34). Somewhat recently is the case of Oates & Crest (2008) FamCAFC 29. In that case, a wife was ordered to pay the husband’s legal fees of $80,000, in addition to re-establishment costs and maintenance.
To receive a Hogan Order, a few things need to be established:
- There must be a disparity between the parties’ financial positions in that the respondent has control of a majority of the parties’ property pool;
- The applicant does not have access to the assets and is unable to meet their legal costs pending trial;
- The respondent must be able to afford their legal fees;
- The amount the applicant is seeking is less than the amount they are likely to receive by way of a final property settlement; and
- The court has evidence of the applicant’s legal costs.
Can you get an interim property settlement order for spousal maintenance?
Yes. An interim maintenance order may be made under the Family Law Act. When it comes to an application for interim spousal maintenance, filing an accurate financial statement is incredibly important. Having a proper financial statement that evidences that your outgoings exceed your income, while the other party has sufficient funds to meet their own needs as well as yours, will be incredibly favourable for an application for spousal maintenance.
Can you get an interim property settlement to preserve the property pool?
Yes, if you are concerned that your ex-partner will dispose of property, you can file an injunction. In this situation, you may bring an Application for interim property orders for an injunction. Examples of the types of injunctions you may want to have include:
- An injunction that restrains your ex-partner from selling, or increasing the mortgage, of a property of the relationship;
- A request that hinders a company from involving itself in risky business activities
- An order to restrain your ex-partner from disposing of their finances such as superannuation, shares, or bank accounts.
An example of an injunction to stop your ex from disposing of their funds is in the case of Sheehan [2008] FMCAfam 655 when a wife sought orders to freeze the husband’s bank account. The outcome was that the court ordered the husband to give his solicitors half of his current bank balance to hold on trust, pending a final property settlement.
Conclusion
Interim property orders in a property matter can be a valuable way of protecting your interests and entitlements to a final property settlement outcome. If you are struggling financially or concerned about the property pool, seek legal advice as soon as possible.
