Interim Property Order & When You Can Obtain One

INTERIM PROPERTY ORDER – I NEED FUNDS NOW!! Can the Court make an Interim Property Order for the release of funds or property prior to the Final Hearing?

Have you recently separated or considering separation from your partner? Is your limited access to available finances creating an inability to pay necessary living expenses or putting you at legal disadvantage?

During a relationship parties can experience a superior financial position on account of the combined incomes of the marriage or on account of one person providing care for children which enables the other party to achieve a greater income for the family. After breakdown of the relationship it is often the case that one party will obtain a
financial advantage through controlling the assets or withholding the income they previously shared between the parties. This can put the other party in an uncomfortable and unfair position of not being able to pay for necessary living
expenses or not being able to pay legal fees to obtain justice. Can the Court make an Order for finances to be released or paid to assist?  Subject to certain criteria being met – The answer is yes!

If you would like some practical family law advice including regards the options available to you, contact our experienced Brisbane divorce lawyers or our divorce lawyers North Brisbane. We can assist you in all areas of family law, including regards final family law property settlement, obtaining interim property orders, maintenance claims and parenting arrangements. We will advise you regards likely outcomes for your particular circumstances. This will allow you to make an informed decision and to retain control over how your family law issue is resolved. You are also welcome to read on for further information right now………

In an interim property order, there are various types that the Court may need to deal, for example, to preserve or sell assets or to deal with who is remaining in the former matrimonial home.

The Court can also deal with issues like making sure that the bills get paid or that some cash is freed up in the short term for living expenses or for payment of legal fees.

While it may not be appropriate in every situation the Court has the power (and does exercise it) to provide a party with access to cash or assets before it is known what is happening on a final basis.

There are three main types of interim property orders that the Courts tend to look at in these circumstances:

In a recent case before the Federal Circuit Court of Australia at Melbourne Guan & Guo [2018] FCCA 3346, Judge Harland Ordered that funds from the sale of an investment property be distributed between the parties for legal fees and living expenses.

In that case:

  • the wife claimed the total property pool had the value of $3,000,000;
  • the husband claimed the total property pool had the value of $1,500,000;
  • the husband detailed numerous debts which were to be determined at trial;
  • the wife continued to reside in the matrimonial property;
  • the husband was continuing to make mortgage payments on the matrimonial property
  • the investment property had been sold and funds were being held in the amount of $240,000 from the sale;
  • the wife sought that capital gains tax be paid, an amount of $40,000 be paid towards the mortgage over the former matrimonial home and that the then remaining net proceeds of sale be distributed equally between the parties by way of a partial property settlement;
  • the husband sought that all of the net proceeds of sale be applied to reduce the mortgage over the former matrimonial property.

It was noted by the Court that the parties would have significant legal expenses until the time of the final hearing. At the same time, the Court was satisfied that the wife will receive more than $100,000 by way of a final property settlement.

The Court was also satisfied that on both parties’ cases, it was going to be possible to make final orders that would achieve a just and equitable outcome between the parties even taking into account an interim distribution made to the parties.
This was because of the amount of equity that would remain in the former matrimonial home even after an interim property distribution was made.

The Judge Ordered that each party receive $100,000 from the net proceeds of sale  by way of partial property settlement; that
$35,000 be applied to meet capital gains tax and that the balance of the net sale proceeds be applied towards the mortgage and rates charged on the former matrimonial property.

If you are thinking of obtaining a divorce or require assistance to finalise a family law property settlement or parenting arrangements, including where you wish to obtain (or resist) an interim property Order or interim parenting order, contact our experienced Divorce Lawyers Brisbane or North Brisbane Divorce Lawyers at LGM Family Law.

Our friendly and knowledgeable team of Divorce solicitors in Brisbane and Brisbane Northside are here to help. We offer a free initial 15-minute call. You are also welcome to book a fixed-fee initial consultation with us for more detailed
advice tailored to your circumstances.

Our goal is to assist our clients to reach an amicable agreement with their former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.

No matter your situation, we will assist you to resolve your family law issues and leave you free to get on with life!

For more information and resources on divorce and family law matters, visit our page here.

The information set out in this blog is not a substitute for legal advice tailored to your particular circumstances. We recommend that you contact our Brisbane divorce lawyers or our divorce lawyers Brisbane Northside to resolve your family law issues.