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5. Family Law Matters – when legal aid is available

5.7. Spousal and de facto maintenance - after separation

5.7.1 Spousal and de facto maintenance matters

Eligibility Requirements

For legal aid to be granted to applicants to obtain or increase spousal or de facto maintenance, the following tests must be satisfied:

Legal Aid NSW must be satisfied that:

  • the other party's whereabouts are known, or there are reasonable grounds for obtaining substituted service on that party, and
  • there is good reason to believe that the other party has the capacity, or is likely to have capacity in the future, to pay maintenance or increased maintenance,

Legal aid for Family Dispute Resolution (FDR)

The applicant will be granted legal aid for FDR where Legal Aid NSW is satisfied:

  • the requirements in 5.7.1 are satisfied, and
  • it is appropriate for the applicant to participate in 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 applicant will be granted legal aid for court proceedings where Legal Aid NSW is satisfied that:

  • the eligibility requirements in 5.7.1 are satisfied, and
  • the applicant has attempted FDR under the Family Law Act 1975 (Cth) in relation to the dispute, or
  • participating in FDR is not appropriate in the circumstances.

5.7.2 Defending applications for spousal or de facto maintenance

Eligibility requirements

For legal aid to be granted to defend a court application to obtain or increase spousal or de facto maintenance, the following tests must be satisfied:

Legal Aid NSW must be satisfied that:

  • it is unlikely that the court would make an order for the amount sought by the other party, and
  • the applicant for aid cannot adequately defend the court application without legal assistance.

5.7.3 Application to reduce spousal or de facto maintenance

Eligibility requirements

For legal aid to be granted for an application to reduce spousal or de facto maintenance or to defend an application to reduce maintenance, the following tests must be satisfied:

Legal aid for Family Dispute Resolution (FDR)

The applicant will be granted legal aid for FDR where Legal Aid NSW is satisfied that:

  • the eligibility requirements in 5.7.3 are satisfied, and
  • it is appropriate for the applicant to attend FDR, and
  • the applicant cannot either adequately prepare or defend the court application (that will be required if the mediation is unsuccessful) without legal assistance.

See Family Law Guideline 2.3 in relation to determining whether FDR is appropriate.

FDR must be provided by 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 applicant will be granted legal aid for court proceedings where Legal Aid NSW is satisfied that:

  • it is not appropriate for the applicant to attend FDR or FDR has not resolved the dispute, and
  • the applicant cannot either adequately prepare or defend the court application without legal assistance.

Date Last Published: 20/01/2017