Funds For Legal Costs

When parties separate, paying legal costs is often an unexpected expense.
Some couples agree that each party should be able to pay these costs from:

Savings, which may be individual or joint
A mortgage offset account
A draw down on a mortgage
The sale of an asset which neither party wants to keep

In some cases, there are either no readily available funds or one party has a
greater ability to pay their legal costs, for example through higher income,
savings, or family assistance, and refuses to allow the other party to access
the same sources.

What Options Are There to Pay Legal Costs?

The options available to a party without funds are:

Negotiate for access to a source of funds from the other party, such as the
other party’s bank accounts, a draw down on a mortgage, or the sale of shares.
Litigation funding order
Loans from family or friends
Personal loans from financial institutions
Litigation funding loan
Legal Aid. We do not act in legally aided matters. If you think you may be
eligible, you should contact Victoria Legal Aid:

https://www.legalaid.vic.gov.au/who-eligible-help

What Is a Litigation Funding Order?

If your matter is before the court, litigation funding orders can be made so
that one party is able to access a sum of money either from the parties’
property or from the other party’s income or property.

The objective is to “level the playing field” so that any advantages which the
stronger financial party has in the litigation are mitigated or lessened.

These orders can be made as one of the following:

Costs orders
Interim property settlement orders
Maintenance orders
Dollar-for-dollar orders

We can advise you on which option is most appropriate for you.

What Factors Are Relevant When Determining an Application for a Litigation
Funding Order?

The relevant matters considered by a court asked to make a litigation funding
order were succinctly summarised by Justice Campton in
Agapetos & Armani [2023] FedCFamC1F 1072 at [107] as:

An applicant should have “at least an arguable case for substantive relief
which deserves to be heard”.
There should be evidence of the applicant’s likely costs of the litigation.
It is not essential that the applicant’s legal representatives will not
continue to act unless the costs are paid or secured on an ongoing basis.
An order may make provision for litigation expenses at a rate that appears
reasonable in all the circumstances.
An order can be for costs already incurred as well as for future costs.
Such matters, as well as whether the applicant’s lawyers will continue to
act in the absence of a litigation costs order, may be relevant to the
discretion to make an order and the quantum of the order.
Any such order should be framed to protect the parties from the risk of
injustice which could be done by requiring the funds to be administered by
the applicant’s solicitors and applied to meet the expenses referred to in
the order.

Litigation funding orders are usually made in proceedings for property
settlement and/or maintenance.

What Is a Dollar-for-Dollar Order?

In a “dollar-for-dollar” order, for every dollar the stronger financial party
pays their lawyers, they must pay the same amount to the other party’s
lawyers. These are usually made in property cases.

A rare case where one was made in a parenting case was
Marsic & Linares (No 2) [2025] FedCFamC2F 1501.

In Marsic & Linares (No 2), the parties had resolved parenting
and property matters on a final basis. Pursuant to the parenting orders, the
father was to have supervised time with the four children subject to
conditions which included drug testing and completion of a parenting program.

He appealed both property and parenting orders. He withdrew his appeal on
property matters and later, after failing to pay an order for security for
costs, his appeal in parenting matters was dismissed.

The mother then suspended the father’s time with the children as a result of
child sexual abuse and physical abuse allegations. The father then had
inconsistent supervised time with the children. He brought an application to
revisit the final parenting orders, and the proceedings were re-opened by
consent pursuant to s 65DAAA of the Family Law Act 1975 (Cth)
(FLA). The father’s application for unsupervised time on an interim basis was
rejected and orders for supervised time were made.

The mother successfully applied for a dollar-for-dollar order.

The father had failed to comply with a previous lump sum costs order, and the
father appeared to have re-opened the proceedings as retribution against the
mother. Ultimately, the court considered that a dollar-for-dollar order was
appropriate because the father claimed he could not pay legal fees and had
not properly complied with orders to disclose his financial situation.

Whilst the amount the parties could spend on legal fees would be in control
of the father, the opportunity for the father to have a financial advantage
over the mother in this respect was removed.

What Is a Litigation Funding Loan?

A litigation funding loan is an option for funding your family law matter.

At Forte Family Lawyers, we understand that when you’re navigating a
separation or divorce, lack of immediate access to funds to pay your costs
and the financial strain can sometimes stand in the way of getting the legal
support you need.

That’s why we’ve partnered with JustFund, a dedicated provider of flexible
funding solutions for family law legal fees.

Through this partnership, eligible clients can access a flexible line of
credit to cover legal fees and, sometimes, other expenses. You do not have to
repay the loan until you reach a settlement or gain access to funds, which we
hope reduces the stress of paying costs upfront.

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