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5. Family Law Matters – when legal aid is available

5.6. Property settlement matters - after separation

5.6.1 Property settlement matters

Note: Where an applicant has a parenting and property matter, Legal Aid NSW expects that the proceedings will be conducted together. Unless there are exceptional circumstances, this means an applicant must be eligible for the property matter to be funded for the property and parenting matter. See Family Law Policy 5.6.2.

Eligibility requirements for property settlement matters

For legal aid to be granted for property settlement matters under the Family Law Act 1975 (Cth), the following tests must be satisfied:

Legal Aid NSW is satisfied that:

  • the dispute relates to the matrimonial or de facto home and/or superannuation and the estimated equity in the home and/or deferred benefit is more than $20,000, or
  • where the applicant is not retaining the home or the dispute relates to property other than the home or superannuation, the applicant’s
    • experience of domestic or family violence, or
    • disability

is likely to impact on their ability to effectively negotiate a reasonable property settlement, or there are exceptional circumstances.

Note: legal aid is also available to applicants seeking to intervene as a third party in proceedings under the Family Law Act 1975 (Cth). See Civil Law Policy 6.4.2: proceedings to protect a person's interest in the home.

Note: Where legal aid is granted under Family Law Policy 5.6: property settlement after separation, Legal Aid NSW will not take into account any money recovered up to $52,000 when calculating the contribution to legal costs. Any amount in excess of $52,000 will be subject to the contributions policy (see Contributions Policy 11.3.5 and Contributions Guideline 5.5.3)

Legal aid for Family Dispute Resolution (FDR)

Legal Aid will be granted for FDR where Legal Aid NSW is satisfied that:

  • the eligibility requirements in 5.6.1 are satisfied, and
  • it is appropriate for the applicant to attend FDR. See Family Law Guideline 2.3.

FDR must be provided by the Legal Aid NSW FDR Service. Legal Aid NSW is a “family dispute resolution practitioner” as defined under s10G(1)(b) of the Family Law Act 1975 (Cth).

Legal aid for court proceedings

  • the eligibility requirements in 5.6.1 are satisfied, and
  • the applicant has attended FDR in relation to the dispute, or
  • participating in FDR is not appropriate in the circumstances.

See Family Law Guideline 2.11 on grants of aid made in relation to preservation of property and where there is a risk the property may be disposed of.

5.6.2 Property settlement and parenting matters

Where an applicant for legal aid has a parenting matter and a property matter, legal aid will only be available for the parenting matter (Family Law Policy 5.3) where the applicant is also eligible for their property matter (Family Law Policy 5.6), unless there are exceptional circumstances (parenting and property).

Date Last Published: 20/07/2020