For legal aid to be granted for spousal maintenance, the following tests must be satisfied:
- The applicant meets the means test, and
- The applicant meets either:
- The parties were in a relationship and are within the time limitations defined in the Family Law Act 1975
- The applicant meets the merits test.
Application received from client
Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:
- a completed and signed Legal Aid Queensland application form.
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance must electronically submit an application for aid via the Grants Online system attaching:
- proof of the applicants income and assets (refer to the means test).
The following documents are retained on file but may be requested by Legal Aid Queensland:
- a completed and signed Legal Aid Queensland application form.
Spousal maintenance disputes under the Family Law Act 1975
Funding for spousal maintenance 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 spousal maintenance 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 limitations:
Legal Aid Queensland will only fund spousal maintenance disputes where the application for spousal maintenance is within time.
An application for:
- de facto spousal maintenance must be made within 2 years of the end of the relationship
- marital spousal maintenance must be made within 12 months of divorce becoming final (divorce order that has come into effect).
If the application for spousal maintenance 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.
The applicant for assistance cannot obtain the order by consent
Legal Aid Queensland may consider the applicant cannot obtain an order by consent if:
- the other party refuses to or fails to provide financially for the maintenance of the applicant, and
- no agreement was reached at Family Dispute Resolution.
The other party's whereabouts are known, or substituted services is likely to be successful
Under this criteria, legal aid is only available for spousal maintenance if the applicant provides the address of the other party. If the applicant does not know the address of the other party, the applicant must provide the address of an immediate family member of the other party where they believe that substituted service is likely to be successful.
There is good reason to believe that the other party has capacity, or likely to have capacity in the future, to pay spousal maintenance or increased maintenance
Legal Aid Queensland may consider the other party has capacity to pay if the other party is employed and/or has financial resources (e.g. veterans’ affairs pension) to satisfy the order sought, and these resources are not diminished by the other party’s special needs (e.g. health) or legal obligation to maintain dependents.
Applicants for assistance cannot adequately prepare or defend the court application without legal assistance
Legal Aid Queensland will only consider that an applicant cannot adequately prepare or defend a court application without legal representation if the applicant meets the Commonwealth legal aid service priorities - special circumstances of the applicant priorities.
Prospects of success
In determining an applicant's prospects of success in obtaining a spousal maintenance order, Legal Aid Queensland will take into account the applicants:
- financial circumstances (income and assets including child support payments)
- ability to work
Legal Aid Queensland will also take into consideration:
- the ability of the respondent to pay spousal maintenance
- whether the applicant has a reasonable standard of living
- the length of the marriage or relationship and the extent to which it has affected the applicants ability to earn an income
- whether the applicant has re partnered
Grant(s) of aid
Initiate or respond to court proceedings
FM2A - initiate or respond to court proceedings
The grant of aid to initiate or respond to court proceedings provides for up to to three court attendances (which includes conciliation conferences). As an application for spousal maintenance should not involve an application for interim orders, the FM2B and FM2C grants of aid are not available.
Extension(s) of aid
The following extensions may be available:
Up to trial directions
If the solicitor represents the client at three court attendances and trial directions are not issued by the third court attendance, the FM2D grant is available for each appearance until trial directions are issued.
FM3A – prepare for trial (full merits assessment made). The grant of aid for trial preparation provides for up to two court attendances prior to trial commencement.
If the solicitor represents the client at two court attendances after trial directions are made and the trial does not commence by the third court attendance, the FM3C grant of aid is available for each appearance until the trial starts.
- FM4A - day one of trial for solicitor and counsel,or
- FMS5 - day one of trial for solicitor advocate
- FM4B - additional days of trial for solicitor and counsel
- FMS7 - additional days of trial for solicitor advocate
Solicitors may also request additional funding outside the stage model; the criteria applied to these requests are contained within nature and extent of funding.
Funding for spousal maintenance disputes will be provided subject to the right to recover a retrospective contribution.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).