The Family Law Act 1975 gives the Court power to make Orders dividing up your and your ex-partner’s assets, liabilities, and superannuation entitlements after you separate. As with all family law issues, what Orders will be made (if any) will turn on the specific facts of each case.
Generally speaking, the Court will exercise its power to make these types of Orders on a final basis. This means that once any necessary transfers have been made, bank accounts closed and superannuation split, you will have your separate ‘pool’ of assets that you can do whatever you want with, your ex has theirs, and you each then go your separate ways with the matter finalised and behind you.
In some cases, however, people simply cannot wait years for a final hearing to determine what will happen to their assets on a final basis. The asset pool might be diminishing because the parties cannot pay the mortgage, or a party may need access to funds that are locked up in a frozen bank account to pay a tax debt or other liability, or legal costs. In those cases, the Court may be asked to step in and make interim or ‘partial’ property Orders.
The Full Court in the matter of Strahan (2011) set out the two-step process that the Court will generally follow when asked to consider these types of applications.
Firstly, the Court must consider whether the interests of justice require the exercise of its power on an interim basis and whether it would be ‘appropriate’ to make that Order, with the interests of justice being the overarching consideration. Though an applicant does not need to show “compelling” circumstances, the Court will have regard to the fact that usually property orders are made after a final hearing.
In the second stage, the Court must turn its mind to making a conservative assessment of what the range of possible outcomes may be on a final basis so that whatever property is left over after the interim order is made will still be enough to meet the ‘legitimate expectations of both parties. In other words, what one person is given on an interim basis must be less than what they could possibly be entitled to on a final basis, or the order must be capable of being reversed so that the Court does not wind up deciding that the other person is entitled to more than what is then left available (and is appropriate) for the division at the end of the hearing.
Successfully applying to sell a house on an interim basis is, therefore, possible, but of course, will depend on the facts of your own case. You should seek specialist family law advice before going ahead with an interim application. If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.