MCG Legal    Blog    Family Law Legal Fees & Hogan Order

By Matt Gill

How can I afford legal representation in the event my marriage or relationship has broken down?

Generally speaking the Family Court of Australia and the Federal Circuit Court of Australia subscribe to the mantra that each party shall bear their own costs of proceedings. A common concern of a lot of people is how they pay their legal representatives if one of the parties to the relationship is in a position of financial dominance over the other?

The first step to resolve this issue is to attempt to get consent from the other side for a joint draw down of funds (from the pool of matrimonial assets) to be placed into each solicitor’s trust account. There seems no logical reason why “the other side” would deny such a reasonable request. A joint draw down of funds will not be any more or less favourable to one side than it will be to the other. It is usually the case that both parties will be relieved that the immediate financial burden of being able to pay your legal team is removed.

If you are unable to obtain consent as outlined above, there are many institutions which offer the litigation lending to litigants to achieve settlement of your matter.

If the above is unable to be achieved, the final step is to head to Court. The Family Law Act 1975 provides the Court with the authority to order a financially dominant party to give the other party sufficient funds to be able to prosecute their case. This is commonly known in legal circles as a “Hogan Order” and seeks to place both parties in the same financial position. It is so named after the leading case in this area of law.

Hogan Order

Typically, a Hogan Order will involve an application (the applicant) from the financially weaker party that the financially dominant party (the respondent) pay the applicant a lump sum. It can also be in the form of “a dollar for dollar” order whereby for every dollar spent by the wealthier party, the equivalent amount must be provided to the other party. Where the respondent’s wealth is primarily asset based, the Court can order the sale of assets to pay these amounts.

Being granted a Hogan Order is not guaranteed and will depend in each and every matter upon the particular circumstances of your case and the available asset pool. Your legal advisor will be able to tell you more when assessing the facts of your matter. Of course any such application is going to incur legal costs and the commercial reality is that to prepare such an application and appear it can cost anywhere between $10,000 – $20,000, another reason why obtaining consent as outlined in the first step of this article is so important. It is highly likely that your legal representative will carry their costs until an order is made and money is received and you should make that inquiry with your legal advisor at the outset.

Hogan Order Threshold – What is required?

A Hogan Order is viewed by the Courts as a last resort and all other avenues should be exhausted prior to making the application. The applicant to a Hogan order application has to pass certain threshold tests in order to be successful:

Evidence will also need to be presented about the actual legal costs incurred so far and that your legal representative is unwilling to carry your costs for the duration of the matter. You should obtain legal advice about the exact form of the evidence needed and the processes involved.

Please feel free to call MCG Legal and discuss your Family Law matter with us.

Recent Articles

Child Custody & Parenting Disputes

Many relationship breakdowns involve children – which leaves the question, “How will the children spend time with their mother and father post separation?”.  The paramount consideration in all disputes involving children is the concept of the “child’s best interestsR...

Read More

DNA Testing & Paternity

A relationship breakdown involving children can occasionally raise questions about the paternity of the child.  Ultimately DNA testing will determine beyond any reasonable doubt who the child’s parents are, but other matters are taken into account before that DNA test is conducted. A child bor...

Read More

Grandparents Rights to See Grandchildren

A relationship breakdown involving children not only affects the parents directly involved, but often the extended family members such as grandparents. The Family Law Act 1975 (“the legislation”) supports the generally held view that children should be entitled to have a relationship with their g...

Read More

Child Support Agreements

A written agreement between parents or carers of children about the payments to be made in support their children is called a child support agreement.  Child support can be made in all sorts of ways, e.g. direct payment of a set amount to one of the parents/carers into their nominated bank account e...

Read More

Child Location and Recovery Applications

Some post separation parenting disputes involve the removal of children from their geographical location. Changing a child’s living arrangements, such that it makes it significantly more difficult for the child to spend time with a parent is a major change in a child’s life and something ...

Read More

Pre Relationship Binding Financial Agreements

It is possible for two parties about to enter into a relationship to enter into a legally binding financial agreement which details how “pre-relationship assets” and “matrimonial assets” will be divided in the event of separation. It is important that both parties entering int...

Read More

Consent Orders & Separation Agreements

Your relationship has broken down and like many couples you have accumulated assets during that relationship.  You can agree on how your property should be divided without any court intervention and the most effective way to distribute the matrimonial assets is through one of the following legal ag...

Read More

Child Relocation Disputes

Parenting disputes involving the relocation of a child or children of a relationship are relatively common and always controversial. Recent legal developments result in the establishment of the following legal principle:- “Where a parent of a child or children is seeking an order from the court per...

Read More

Family Mediation Services

Mediation is a process in which parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no authority to bind participants to a negotiated agreement, bu...

Read More

Spousal Maintenance

One party to a marriage (read into this de facto) is liable to maintain the other party to the marriage if the other party is unable to support themself adequately and to the extent the first party is reasonably able to do so. Before making any spousal maintenance orders a court must consider what pr...

Read More

Property Settlements - for both married and de facto relationships

Sadly, not all relationships last. Many couples are able to successfully negotiate the division of their assets and care of their children without legal intervention. But, there are some who cannot and that’s where we get involved. This article will explain the general court processes and the...

Read More

Resolving Financial Matters in Family Law

In resolving property matters arising from the breakdown of either a marriage or a de-facto relationship, the Family Law Court and the Federal Circuit Court of Australia have jurisdiction to resolve these matters pursuant to the Family Law Act 1975. With regard to de-facto relationships, there are a...

Read More