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Guideline 12 - Property

Guideline 12.1

Asset pool greater than $20,000 and less than $400,000. 

Funding for property settlement disputes under the Family Law Act 1975 can only be provided where the applicant is within the relationship criteria and the application for property settlement is within time.

Relationship criteria

Legal Aid Queensland will only fund property settlement disputes where the applicant and other party were:

  • married and are now separated or divorced, or
  • in a de facto relationship, and
    • the relationship existed for a period of at least 2 years (this can include more than one period providing it totals at least 2 years), or
    • there is a child of the relationship, or
    • one of the partners has made substantial financial or non-financial contributions to their property or as homemaker or parent, and serious injustice would result to that partner if an order was not made, or
    • the de facto relationship has been registered in a State or Territory under laws for the registration of relationships

Time limit

Legal Aid Queensland will only fund property settlement disputes where the application for property settlement is within time.

An application for:

  • de facto property settlement must be made within 2 years of the end of the relationship
  • marital property settlement must be made within 12 months of divorce becoming final (divorce order that has come into effect).

If the application for property settlement is outside the above time limits, Legal Aid Queensland will only consider funding an applicant out of time where they have been granted leave to commence proceedings outside of time by the court.

Separation is final

Where the dispute relates to property only and the applicant is seeking funding for court proceedings, Legal Aid Queensland will only consider funding were the parties have separated on a final basis. Final basis is defined to be six months or more.

Where the dispute relates to parenting and property, parties must be separated for a sufficient period of time (defined as six weeks) as outlined in guideline 1.2 – non urgent matters.

Disputed property

When taking into account the estimated equity in the disputed property, Legal Aid Queensland considers all assets owned by the parties form part of the property pool. This means that Legal Aid Queensland when calculating the estimated equity of the disputed property will not exclude assets where parties are in agreement with the split / ownership of certain assets.

Guideline 12.1.2

Where the dispute involves parenting and property, funding is available for a family dispute resolution conference.

Where the dispute only involves property or in circumstances where the parenting dispute has been resolved, funding is only available for property arbitration.

Guideline 12.1.3

Homelessness

Legal Aid Queensland uses the Australian Bureau of Statistics (ABS) statistical definition of homelessness.

Another related family law matter

If there is no risk of homelessness, Legal Aid Queensland will only grant aid for a property settlement dispute where the applicant is seeking the resolution of another related family law matter. Another related family law matter is deemed to be a parenting dispute.

Guideline 12.2

Asset pool greater than $20,000 and less than $500,000.

From 1 January 2020, Legal Aid Queensland has received funding from the Commonwealth to provide lawyer-assisted mediation and arbitration to resolve less complex property disputes.

The pilot provides for property only disputes where the estimated equity in the disputed property is more than $20,000 with an upper limit of $500,000 excluding superannuation (with no limit on superannuation) OR where the applicant for legal assistance’s estimated total net claim is $250,000 or less of a greater equity amount.

If children’s issues are in dispute, then guideline 12.1 is to be applied.

A referral can be made to the property pilot for either a property conference or Arbitration process.  However, a referral should be made to property conference in the first instance, unless Arbitration is specifically requested.

Relationship Criteria

Same as Guideline 12.1

Time Limit

Same as Guideline 12.1

Separation is final

Same as Guideline 12.1

Guideline 12.3

Risk that property will be disposed of

Legal Aid Queensland may determine that there is a risk that the property will be disposed of where the applicant is not a registered owner of the property and:

  • the other party has listed the property for sale, or
  • the other party has indicated their intention to sell the property to a friend or acquaintance for less than it is worth, or
  • the other party has indicated their intention to gift the property to a relative or friend, or
  • the other party has indicated their intention to re-finance the property, or
  • the other party has indicated their intention to borrow against the property.

Homelessness

Refer to interpretation of guideline 12.3.

Injunctive relief

Injunctive relief provides limited assistance for solicitors to protect the applicant's interests in the property. Funding is limited to:

  • the lodgement of a caveat, and
  • lodgement of an application to the court for final orders, and
  • attendance at the first court appearance.

Any further assistance sought after injunctive relief must be assessed under the means test, other relevant guidelines and merits tests.

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