Preservation of property (injunctive relief)

For legal aid to be granted for the preservation of property, the following tests must be satisfied:

• The applicant meets the means test.
• The applicant meets guideline 12 – property.
• The applicant meets the merits test.

Where the total equity of the home to be preserved exceeds $400,000.00, the request will be referred to a grants manager for determination.

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance should forward the following documents for assessment:

• A completed and signed Legal Aid application form.
• Proof of income and assets (refer to the means test).
• Details of the total property pool involved.

Application received from preferred supplier or in-house solicitor

Practitioners seeking a grant of legal assistance must electronically submit an application for aid via the Grants Online system with the relevant information request.

The practitioner must also ensure that the following documents are retained on file:

• A completed and signed Legal Aid application form
• Proof of the applicants income and assets (refer to the means test).
• All documentation as outlined in case management standards - family law - part c.

Interpretation

There is a risk that the property will be disposed of

Legal Aid Queensland will only fund an applicant to preserve their rights to property if the applicant can demonstrate that they have an equitable interest in the property and there is a risk that the property will be disposed of.

Examples of when Legal Aid Queensland may determine that an applicant has an equitable interest in the property are:

• The applicant and the other party were in a de facto or married relationship, and
• The applicant has made significant financial contributions to the property during their relationship with the other party (ie the applicant paid household bills or mortgage payments), or
• The applicant has made both financial and non financial contributions to the property during their relationship with the other party (ie the applicant was a homemaker and care giver of the children).

Examples of where there is risk that the property will be disposed of are:

• the applicant is not a registered owner of the property, and
• the other party has listed the property for sale, or
• the other party has indicated their intention to sell the property to a friend or acquaintance for less than it is worth, or
• the other party has indicated their intention to gift the property to a relative or friend, or
• the other party has indicated their intention to re-finance the property, or
• where the nature of the relationship of the parties is such that the other party is likely to dispose of the property without notification, or
• the other party has indicated their intention to borrow against the property.

Injunctive relief

Injunctive relief is only approved for preservation of property matters.

Injunctive relief provides solicitors funding up to the lodgement of a caveat, an application to the court for final orders, and the first court appearance. No further funding is available for applicants under this guideline. Applicants seeking further assistance may seek funding for:

• property arbitration
• representation at court for property disputes

Grant(s) of aid

The grant of aid for the preservation of property is FM2A.

Retrospective contributions

Funding for property settlement disputes will be provided subject to the right to recover a retrospective contribution.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).