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Policy Bulletin 2020 / 8 Family Law Policy – Property matters

20 Jul 2020

The Legal Aid NSW Board approved changes to the family law property policy (Property Policy) to ensure people who are experiencing or at risk of domestic or family violence (DFV) and/or who have a disability can access grants of legal aid for property settlement matters.

Background

Under the previous Property Policy, a person was only eligible for a property matter where they are retaining the home unless Legal Aid NSW was satisfied there are exceptional circumstances: an applicant would meet that test where we are satisfied their experience of DFV or disability impacts on their ability to negotiate a reasonable property settlement.

Our research indicated that that less than 5% of our applicants were retaining their homes when they apply for legal aid. This means for most applicants we needed to consider whether they satisfy the exceptional circumstances test. Given our policy intent is to have legal aid available for property matters to people experiencing DFV, the Board approved making this clear in the body of the policy rather than be treated as exceptional circumstances.

Legal aid was only available where the applicant was likely to receive $80,000 or less. Our evidence indicates that this often created a barrier to people experiencing DFV from accessing a grant for their property settlement matter. The Board has approved removing this test. 

What has changed?

To ensure people experiencing DFV and/or with disabilities can access grants of legal aid for property matters the following changes have been made to the policy:

  • The experience of DFV and disability are upfront as eligibility criteria
  • There is no stated limit in the policy on the amount the applicant may recover through the property settlement: the assets test under the Means Test will act as the cap on the pool of assets (currently this is $260,500), and
  • We have retained the exceptional circumstances test for applicants who may not fall within the policy but whose circumstances may be considered exceptional.

Where do I find the change?

See Policy at Policy Online, Family Law Policy at 5.5.

Commencement date

The change applies to applications for legal aid determined on or after 20 July 2020.

Contact for further information

Please contact Aideen McGarrigle on 9219 5701 or the Client Eligibility Unit at T-CEU@legalaid.nsw.gov.au for any questions about the policy change.