Can’t afford Family Law Legal Fees? Consider a Hogan Order
17 January 2023
In family law matters, it is not uncommon for one party to control the majority of finances / wealth.
In such circumstances, the financially ‘weaker’ party may find themselves unable to afford a lawyer to assist them with property settlement negotiations or litigation.
Fortunately, remedies are available.
Firstly, it might be proposed that the financially stronger spouse transfer funds (immediately or after sale of assets) to cover the anticipated legal fees of the financially weaker spouse. Where that occurs, it would usually be appropriate for such funds to be considered a partial settlement (that is, included as part of the distribution the financially weaker party is entitled to in the settlement). This is especially so where the funds transferred existed at separation.
As a last resort, a ‘Hogan’ Order (referring to a case titled Hogan [1986] FamCA 34) may be sought from the Court.
A Hogan / Barro Order is an Order from the Court that a financially stronger party transfer funds to cover the financially weaker party’s legal fees.
Such Orders are made at early stages in proceedings pursuant to the Court’s power to make ‘interim property settlement Orders’. This power is set out in section 80(1)(h) of the Family Law Act 1975 (Cth) (marriages) / section 90SS(1)(h) (de facto relationships).
Such Orders may take many forms. These include, but are not limited to, an Order that:
a. cash be transferred;
b. assets be sold;
c. income (such as rental income) be directed to parties in certain proportions.
To obtain a Hogan Order the financially weaker party must satisfy the Court that:
1. they are financially weaker;
2. they do not have sufficient assets to fund their past and / or future legal fees;
3. the other party has control of sufficient assets to fund the legal fees of both parties;
4. the amount they are seeking is less than what they are arguably entitled to in the property settlement.
Hogan Orders can be ‘make or break’ in a family law property settlement. Failure can result in a party ‘giving up’ in the litigation, as well as an Order for costs. As such, it’s important that applications seeking Hogan Orders are carefully considered, and ‘done right’ by an experienced family lawyer.
