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

Resolving Financial & Property Issues

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

Copyright Law for New Business Owners | Gold Coast

5 When starting a new business, Copyright Law and its associated protections are probably the furthest considerations from your mind. After all, you’re not writing a novel, directing a movie or producing new music. So, the most obvious question is: “What is Copyright Law and how does it affect m...

Read More

When is the Best Time to Review Your Will?

Many people believe a Will is a once and forever document. Unfortunately, this is not the case. Your Will should reflect your wishes which may change during your lifetime. There are several significant life events which coincide with the time to revise your Will. Read on to discover which life event...

Read More

What Is Domestic Violence? | Gold Coast

There has been an enormous amount of publicity recently on the issue of domestic violence. Domestic violence can have serious impacts on people enduring it. Anyone can be a victim of domestic violence, but statistics demonstrate that domestic violence is overwhelmingly perpetrated by men against wome...

Read More

Why You Need A Good Family Lawyer | Gold Coast

When separating from your partner resolving both children’s and financial matters and even organising a divorce, it is important to get good legal advice. Family Law is a complex area of law and you should engage legal representation. It is important to engage legal representation you can trust. R...

Read More

8 Things To Consider Before Buying a Home | Gold Coast

Purchasing property is often the most significant purchase you will make.  If you are purchasing property for the first time, this can be a very daunting experience.  We have prepared the following tips to make moving into your dream home much easier. Very few lenders will offer a mortgage if there...

Read More

Helping Children Cope With Divorce

It’s a sad fact that almost half of all marriages end in divorce. To complicate the situation even further, many of these couples have children. During the divorce process, couples are preoccupied with property, and financial division. The children’s emotional and physical well-being can som...

Read More

The Difference Between A Will & Estate Planning

Most people believe a legal Will adequately covers this and while it’s essential, a Will is only part of the process. Estate planning covers every facet of the distribution of your estate following your death. A Will is a legally binding document that details your wishes regarding the dist...

Read More

Driving Under the Influence, Know Your Limits

It’s summer, which for many means party season. The time of year to drink, be merry and enjoy the summer sunshine. Unfortunately, this carefree time of year is also a time for an increase of people driving after they have had too much to drink. Alcohol and driving are a fatal combination. There are...

Read More

Intestacy - Dying Without A Will

The complexities surrounding Wills and Probate can be difficult to anyone other than a highly trained lawyer. These complexities combined with the uncomfortable feelings often associated with making a Will, all combine to make it an unpleasant task which people tend to avoid. Our intent is not to con...

Read More

Conveyancing: Obtaining Legal Advice

By Matt Gill It has become normal practice on the Gold Coast when purchasing or selling property, that contracts are often signed by the buyer and seller prior to obtaining legal advice from a qualified conveyancing lawyer. Personally I think this occurs for one of the following reasons: Because of...

Read More