In many relationships we see, it’s common for one person to hold or control all of the cash assets. This may be intentional, or it may simply be a consequence of the financial arrangements during the relationship. Unfortunately, upon separation, this type of financial arrangement often results in one person being left with no cash. Without cash, that person does not have the funds to engage a family lawyer to help them through separation.
For those of you experiencing this, there are options available for you to be able to engage a family lawyer.
If you know there’s cash available (or an asset that could be easily sold), you can seek a lump sum payment from those assets to cover your legal costs. And if your former partner doesn’t agree, he or she could be forced by the Court to make this payment. In family law, this type of Order is commonly referred to as a “Hogan Order”.
The purpose of this post is to give you an understanding of a “Hogan Order”.
For information on other ways to meet family law legal fees, please see our earlier post “What If I Can’t Afford A Family Lawyer?”.
What is a “Hogan Order”?
The term “Hogan Order” comes from a leading Family Court case, Hogan  FamCA 34.
A “Hogan Order” usually requires one person to either:
– pay a lump sum to their former partner to enable them to meet their legal costs; or
– sell an asset and provide the sale proceeds to their former partner for their legal fees.
The purpose of a “Hogan Order” payment is to create a “level playing field” between you and your former partner. The Court recognises the significant power imbalance if only one person could access the cash to meet their legal costs.
In most cases, this cash payment will be taken into account as cash already received by you when calculating the property settlement. For example, if the final property settlement is that you each receive 50% of the relationship assets, the cash payment that you received for your legal costs will form part of your 50% share.
How do I get a “Hogan Order”?
Generally, when requesting a “Hogan Order” payment, the following criteria must be met:
1. There must be a difference in the financial circumstances between you and your former partner.
For example, if all of the relationship savings are held in your former partner’s bank account, leaving you with little to no cash, there’s clearly a difference in the financial circumstances.
2. There must be enough cash assets to allow both of you to meet your legal costs.
3. There must be merit to your property settlement.
What this means is that you must have an arguable case for a property settlement. The cash you are requesting for your legals must also be less than what you may be expected to receive as part of the property settlement.
Steps involved to get a “Hogan Order” payment
In most cases, the first step would be to have your family lawyer write to your former partner (or their lawyer) requesting a lump sum payment to cover your anticipated legal costs. An agreement reached through negotiation will save you both the financial and emotional cost of going to Court.
If your former partner does not agree to make this payment, your next option would be to make an Application to the Court for a “Hogan Order” payment. For more information on the Court process, please see our post “What You Need To Know About the Family Law Court Process”.
A $5,000,000 “Hogan Order” payment!
That’s right, in 2009 the Family Court of Australia in the case Strahan & Strahan, granted a $5 million payment for legal fees. Yes, we are as shocked as you! Mind you, the relationship assets totalled over $80 million. So, if your ex tells you that you’re not entitled to the cash assets to meet your legal costs, you might want to inform them of this case …!
The “Hogan Order” exists to enable both parties to have access to qualified legal advice and representation. It provides both parties an equal opportunity to present their case. If you’re aware there’s cash available that you can’t access, we recommend contacting a family lawyer to discuss your options.
Would you like further information?
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based on your particular circumstances.