My Husband Controls All Our Money. Can I Get Funds for Legal Fees?
One of the most frightening positions to be in after separation is knowing that substantial money or assets exist, but having no practical access to them.
Your former partner might control the bank accounts. They may operate the family business. They may have always managed the investments. You may have spent years caring for the children while they controlled the finances.
And now you are being told:
“If you want a lawyer, pay for one yourself.”
That does not necessarily mean you are out of options.
Can I access money for legal fees during a family law property settlement?
Potentially.
Australian family law provides mechanisms that may, in appropriate circumstances, allow a party to seek access to funds before the final property settlement has been determined.
Depending on the circumstances, this can include seeking an interim property distribution or other orders concerning legal fees.
These applications are highly dependent on the individual financial circumstances of the case.
What if all the assets are in my husband’s name?
The name in which an asset is held is relevant, but it does not necessarily determine the final outcome of a family law property settlement.
Property proceedings involve identifying the parties’ respective legal and equitable interests and considering the overall circumstances under the Family Law Act.
If your former partner controls substantial assets while you have very limited access to funds, obtain advice about your position rather than assuming those assets are beyond consideration because they are not registered in your name.
What if the money is held in a business?
This can make the situation more complex.
Money held by a company is not automatically the same thing as money personally owned by a shareholder or director.
Similarly, trust assets require careful consideration of the trust structure and the parties’ respective interests and control.
That is why proper financial disclosure is important.
Before deciding what application may be available, your lawyer may need to understand where the wealth is actually held.
What if financial control was part of the relationship?
Financial control can also arise in the context of family violence.
Examples can include one person controlling all access to money, preventing the other from working, monitoring expenditure, withholding funds required for basic necessities or using financial dependence as a means of control.
If you are experiencing family violence or coercive financial control, tell your lawyer.
It may be relevant to much more than simply how your legal fees are funded.
What other legal funding options exist?
Depending on your circumstances, there may be other options available.
These can include private family law litigation funding products, deferred payment arrangements offered by some legal practices, Legal Aid in eligible cases, or assistance from family members.
The appropriate option depends on the case.
Be particularly careful about the terms and costs of any commercial litigation funding arrangement. Understand what you will ultimately repay before entering into it.
Don’t let financial control prevent you from getting advice
There is an important difference between not having assets and having an interest in substantial assets but being denied access to money.
If the latter describes your situation, do not assume you cannot afford to take any steps.
Getting initial advice may help you understand both your substantive family law entitlements and the options available to fund the process.
At Melmark Law, we regularly act in property matters involving significant disparities in income, access to assets and financial control.
Your former partner having control of the money today does not necessarily mean they get to control your ability to participate in the legal process.
This article provides general information only and does not constitute legal advice. You should obtain advice about your individual circumstances.