In March 2024, Legal Aid NSW launched a new policy for funding family law property settlements, called the property policy. This policy offers legal aid for cases where the net asset pool is $850,000 or less. It mainly focuses on individuals aged 55 and older, as well as those whose ability to negotiate a fair settlement is significantly affected by a disability or experiences of domestic and family violence (DFV).
For those who don’t meet the criteria under this policy, there is still the possibility of obtaining legal aid under exceptional circumstances. As outlined in Legal Aid NSW’s tipsheet on Property Settlements Exceptional Circumstances, this additional avenue applies only to clients eligible for legal aid, not the general public. Exceptional circumstances are evaluated carefully, and the policy is applied sparingly, meaning only a limited number of applicants will qualify.
To help illustrate how this works, Legal Aid NSW has provided the following case studies:
Case Study 1: Vulnerabilities not covered by the policy
Lila is a 34-year-old woman who was married for seven years. She has no history of domestic violence and does not have a disability, meeting the Means Test criteria. The net asset pool is approximately $400,000.
Lila struggles with significant language barriers, as she is not fluent in English and there are few interpreters available for her dialect. Her husband has started legal proceedings and is pressuring her to sign consent orders that would give her only 10% of the assets. Without legal aid, Lila finds it difficult to understand the court process or access necessary financial information, which severely limits her ability to participate.
Although Lila’s situation does not fit the specific client cohorts in the policy, her language barrier and other challenges may qualify as exceptional circumstances. This suggests that legal aid could be justified in property settlement cases where a client’s ability to engage is significantly compromised.
Case Study 2: Evaluating Exceptional Circumstances for Legal Aid
Jordan, 36, has a net asset pool of $800,000 and meets the Means Test criteria. While not a victim of domestic violence and without a disability, both of Jordan’s children have significant disabilities requiring constant care. Jordan feels overwhelmed by the legal process and unsure of their rights.
Jordan worries that selling their home will make it hard to find suitable accommodation and access necessary support services. They have established important relationships with local social workers who provide respite care.
Although Jordan’s asset pool is below the threshold, they do not fit the typical client cohorts. Their caregiving responsibilities may hinder their ability to negotiate a settlement, which could justify legal aid as an exceptional circumstance
Case Study 3: Assessing Eligibility with a High Net Asset Pool
Lee, 50, was married for 30 years and experienced severe domestic violence. She now lives in a refuge, and her net asset pool exceeds $1 million, mainly from the former matrimonial home.
While Lee is a victim of domestic violence, her substantial asset pool must be considered when evaluating exceptional circumstances for legal aid. A pool over $1 million generally negates other qualifying factors, making legal aid unlikely.
Case Study 4: Modest Exceedance of Net Asset Pool
James, 60, was married for 25 years and has a brain injury affecting his memory and cognition. His wife managed all finances. The former matrimonial home is estimated at $700,000, with an additional $200,000 in savings transferred to her account. The estimated net asset pool is about $900,000.
James’s disability may require him to have a litigation guardian.
Despite the net asset pool slightly exceeding the limit, the modest excess and James’s inability to navigate the legal process may warrant legal aid under exceptional circumstances.
Case Study 5: Short Relationship with a Significant Asset Pool
Amira is a 28-year-old who meets the Means Test criteria. She had a short, on-off de facto relationship lasting about two years and has a six-month-old child from this relationship. The couple did not share finances, but Amira believes her ex-partner is wealthy and owns a Mosman apartment where she occasionally stayed. They separated after a police intervention, resulting in a provisional AVO for Amira. Her ex-partner also provides higher-than-assessed child support.
Research shows the Mosman apartment may be worth over $2 million.
The property policy focuses on the net asset pool’s value, not what Amira might receive, regardless of the relationship’s duration. In this case, the net asset pool is likely over $2 million, and unless there are unique circumstances, this situation would typically not qualify for legal aid.
These case studies, provided by Legal Aid NSW, help highlight the variety of circumstances where clients may still be eligible for legal aid, even if they don’t meet the primary criteria under the property policy. For more details and guidance on legal aid eligibility, you can visit Legal Aid NSW’s resources or consult with a legal professional.
If you need help navigating property settlements and exceptional circumstances, don’t hesitate to reach out today!
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