Interim Property Orders & Issues

‍What if I have no money to pay for legal fees or need money now?

Where a party lacks funds to litigate or needs money and they do not meet the threshold for Spousal Maintenance, the court can make an interim or partial property order releasing part of the pool to meet legal costs or expenses.

The power is exercised with caution: the applicant must show need and that the advance can be accommodated within a just and equitable final result. In this respect, a party making an application for an interim order needs to address the property settlement as a whole, in order to enable the Court to be confident that an interim order would not go against a final property settlement:

For example, if a party who holds 60% of the asset pool, seeks a further 5% on an interim basis and they only seek 50% of the asset pool on a final basis, the Court is unlikely to make such an order.

If a person holds no assets, and they seek 5% of the asset pool on an interim basis from a liquid asset and they are seeking 50% of the assts, they are much more likely to succeed in their application.

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Can I change the locks on my house?

A person should not rely on changing the locks unilaterally. Where a property is owned jointly, a person risks the other person simply changing the locks themselves, and where there is a property owned in a person’s sole name, the risk is from an Intervention Order in the Magistrates Court or an order for sole occupation in the Family Court.

‍The proper course is finalising a property settlement in a way that deals with the house as soon as possible. If this is not an option, a sole occupation order pursuant to the Family Law Act (1975) is appropriate if circumstances permit.

For married parties the power is section 114(1), including an injunction restraining a party from entering or remaining in the home (section 114(1)(b)) and relating to its use or occupancy (section 114(1)(f)); for de facto parties the power is section 114(2A) (with section 90SS).

The relevant considerations are the parties’ respective needs, including any children’s, the applicant’s association with the home, the parties’ conduct, their means to obtain alternative accommodation, and the balance of hardship.

An order is interim and discretionary and does not decide the ultimate division. Conduct amounting to family violence may also form the basis of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

That being said, it is relatively common for a person to change the locks on their solely owned house to deny access. However, if sole use and occupation of the property is already conceded to the person in the house, if interest, SAPOL may charge the other party who enters the house, even if they own it, with trespassing.

Parties should be cautious. Where both parties have a legal or equitable interest in the home, or an existing right to occupy it, unilaterally changing the locks does not extinguish the other’s right to occupy.

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