Introduction
Q1: My ex controls all the money and I cannot pay my lawyer. Can the court make them fund my case?
A: Yes. The court can order interim funding before the final hearing, and you do not have to prove your situation is compelling or urgent. All you have to show is that an order is appropriate in the circumstances. Reference: Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
Q2: What happens if the case goes against me? Do I have to hand the money back?
A: The court thinks about that before it pays you anything. If your claim is shaky and you would have no way to refund the money, the application can fail on that ground alone. Reference: Wall & Mitchell [2010] FamCA 1194
Q3: My ex's mother is paying their legal bills. Can the court touch her?
A: Sometimes. A non-party who is tangled up in the assets being fought over can be ordered to fund the other side, and one mother was ordered to pay 350,000 dollars towards her son-in-law's costs. Reference: Lao & Zeng [2021] FedCFamC1A 17
What is a litigation funding order under Australian family law?
A litigation funding order is an interim order that puts money in the hands of the person who cannot afford to run their case, paid by the person who can. It is made long before the final hearing, and it exists because a family law case decided between a spouse with senior counsel and a spouse with nobody is not really a contest at all.
There is no section of the Family Law Act 1975 headed litigation funding. Courts reach the same practical result through four different powers, and which one your lawyer picks changes what you have to prove.
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Interim property settlement, under sections 79 and 80(1)(h). The court hands you part of your eventual property settlement early so you can spend it on legal costs. This is the usual route and the one the leading case was decided under. Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
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Interim costs order, under section 117(2). Section 117(1) starts from the position that each party pays their own costs, but subsection (2) lets the court depart from that where there are circumstances that justify it. This is the power behind dollar-for-dollar orders, where every dollar your ex spends on their own lawyers has to be matched with a dollar for you, and behind most orders made against a third party. Atkins & Hunt and Ors [2018] FamCA 14
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Interim spousal maintenance, under sections 72 and 74. Where one spouse cannot adequately support themselves, weekly maintenance can carry both living costs and, in practice, some of the pressure of legal fees. In Carswell & Tenson [2022] FedCFamC1F 467 the husband was ordered to pay 2,500 dollars a week, and the wife had also asked for a partial property settlement and a dollar-for-dollar order in the same application. Appeal courts treat the maintenance limb and the property limb as separate exercises, and getting one does not carry the other. Jabara & Gaber [2021] FedCFamC1A 26
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Injunction under section 114(3). Where the money sits inside a company or trust the parties control, the court can vary its own injunctions to let each side draw funds out for legal fees. In Cao & Hong [2015] FamCA 884, a case where the couple's wealth was worth more than 200 million dollars, each of them was permitted to take up to 200,000 dollars from group entities for costs, with anything above that needing consent or a further order.
The threshold question was settled by the Full Court in Strahan. An earlier line of cases had suggested applicants needed to establish compelling circumstances, and the trial judge in Strahan itself decided the case on that basis. The Full Court disagreed.
"In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the 'overarching consideration' is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power."
The Full Court also described a second stage. Once the court decides it is appropriate to hear the application at all, it moves to the substance and works within section 79, considering the same matters it would at trial, but briefly and without pretending it is the final hearing. At that stage the court asks whether the money you are asking for sits comfortably inside what you are likely to receive in the end. As the Full Court put it at [137], if it seems likely the applicant will receive a property settlement large enough to cover the advance, that would seem to be enough to make the order.
Core Point: You do not have to show your situation is desperate. You have to show that an order is appropriate, that you genuinely need the money to run the case, and that there is room inside your likely share of the property for the payment to come out of.
Why does it matter which power the court uses?
The four powers are not interchangeable. The same facts can win under section 117 and lose under section 80(1)(h), because the requirement that the money be recoverable at the end bites much harder in the property jurisdiction than in the costs jurisdiction.
Three things turn on getting this right:
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Whether the claw-back argument sinks you. Under sections 79 and 80(1)(h) the court has to be able to reverse or adjust the payment at the final hearing. If your likely entitlement is smaller than the funding you are asking for, that route is closed to you. Under section 117(2) the same problem is one factor among several rather than a dead end.
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Whether a third party can be reached at all. Orders against a non-party who is funding your ex are made under section 117(2). If you frame the application as an interim property settlement, the non-party is outside the frame.
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What it costs you at trial. A litigation funding order is not free money. It has to be brought back into account when the property is finally divided, so what you take now generally comes off what you take later.
The husband was facing a criminal trial and two sets of Supreme Court proceedings at the same time as the family law case. In early 2011 orders in one of those proceedings froze his assets up to 15.5 million dollars. In April 2014 consent orders were made in the Family Court to refinance the couple's jointly owned property so the husband could borrow 2.9 million dollars for urgent legal expenses, and that property then sold for 37 million dollars, leaving net proceeds of 31 million.
The wife said she had never been told that 15.5 million dollars of those proceeds was already spoken for by the Supreme Court orders. Her argument was blunt: once that money was set aside, the 2.9 million paid to the husband was coming out of her share, not his, and the payment could not be unwound at trial.
Outcome: The Full Court allowed her appeal and discharged the orders. Because the 15.5 million dollars was genuinely at risk in the other litigation, the primary judge could not treat it as available for distribution at a final hearing, which meant the 2.9 million could not be clawed back from the husband's share. The court also held that the burden of proving the money was recoverable sat on the person asking for it, not on the person resisting.
"The onus was clearly upon the husband to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat the wife's property claims. The onus was not on the wife to adduce such evidence."
Key Point: You carry the burden of showing the money can be recovered or accounted for at the end. If your case is built on assets that might vanish before trial, expect to lose an interim property application and to be pushed towards section 117 instead.
How do courts decide different litigation funding scenarios?
Three patterns cover most applications. The first is the ordinary case where one spouse simply cannot pay. The second is the case where the money exists but sits behind a structure your ex controls. The third is where somebody else is paying your ex's bills.
Scenario 1: You cannot afford to run the case and your ex can
Common misconception: If I can prove my ex is much richer than me, the court will fund my case.
Legal truth: Financial disparity gets you in the door. What decides the application is whether you have an arguable case worth hearing and whether the payment can be squared up at the end. The Full Court in Strahan said at [139] that more is required than the mere fact that you would eventually receive the property you are asking for.
Where the applicant's underlying entitlement is genuinely uncertain, courts refuse. Where it is reasonably clear but modest, courts often say yes and then cap the amount so the advance stays inside the likely share.
The applicant asked for 150,000 dollars in interim costs to fund her case. The problem was the case itself. The respondent denied that they had ever been in a de facto relationship of at least two years, which is the jurisdictional gateway for a property claim between de facto partners, and he denied that she had made contributions that would support a property adjustment.
So the court was being asked to order a payment before anyone knew whether the applicant had a claim at all. She also accepted she had no way of returning the money if her claim failed.
Outcome: The application was refused. The judge could not conclude it would be just to order the payment when it was far from clear the court would ever make a substantive order in her favour, and when there was no realistic prospect of a refund if it did not.
"In my view, if the Court was to make a preliminary costs order, and ultimately it turned out to be the Court's finding that there was no basis upon which the respondent could be required to make a substantive payment to the applicant, this would be most unjust to the respondent. This is because it is clear that the applicant has no means by which any such preliminary payment could be refunded to the respondent."
Compare that with a case where the entitlement was small but real.
| Comparison | Gaulit & Bunker [2010] | Wall & Mitchell [2010] |
|---|---|---|
| What was asked for | Interim property settlement for legal expenses | 150,000 dollars in interim costs |
| Strength of the underlying claim | Assessed at roughly 20 to 25 per cent of the smaller pool | De facto relationship and contributions both denied |
| Could the money be recovered? | No capacity for claw-back, so the judge capped the total | Applicant had no means to refund anything |
| Outcome | Granted, limited to 135,000 dollars | Refused |
Key: The decisive factor is not how much you need. It is whether the judge can see a share of property coming to you that the payment can be taken out of. In Gaulit & Bunker the judge did the arithmetic openly, assessed the wife's likely entitlement at 15 to 20 per cent on contributions with a further 5 per cent adjustment, and then held the total interim payments to 20 per cent of the smaller asset pool precisely because there was no capacity for a claw-back later.
What helps an application in this position:
- Put a real costs estimate in evidence. Not a round number. A breakdown of what the remaining steps will cost and why.
- Show what you have already tried. Courts want to see that you cannot borrow, cannot sell something, and are not sitting on an asset you have declined to touch.
- Prove the pool has room for the payment. Identify the specific asset the money can come from and show it will still be there at trial.
- Do not overreach. Asking for more than your likely share invites the claw-back objection and can cost you the whole application.
Scenario 2: Your ex controls the money but says they are broke
Common misconception: If my ex swears in an affidavit that they have no money, the court has to take that at face value.
Legal truth: Courts look at what a person can access, not what they say they own. Where someone who apparently controls significant financial purse strings pleads poverty while funding their own lawyers, that is one of the recognised triggers for a dollar-for-dollar order.
"A dollar for dollar order provides a set of machinery provisions to ensure that for any dollar the financially advantaged party spends on legal costs and disbursements on the case, the disadvantaged party is also provided a dollar to spend on their case."
The mechanism has a self-limiting quality that judges like. The paying party controls how much they spend on their own lawyers, and so controls how much they have to hand over. As the judge in Atkins & Hunt observed, it is not uncommon for a financially advantaged party to respond by representing themselves, at which point the playing field levels itself.
The wife's case had already been to a ten day trial and back again after the Full Court allowed an appeal and sent it for rehearing. At the centre of it was a corporate structure involving the husband and his adult children but not the wife, and an entity the parties had agreed was worth more than 11 million dollars, with turnover of 150 million dollars a year. The wife said the husband had disposed of that asset and sought to set the transactions aside.
She asked first for an interim property order, then in the alternative for a lump sum costs order of 412,000 dollars, and failing that for a dollar-for-dollar order. The husband said she could fund her own case. He also said he could not point to a source of funds to pay his own lawyers, while appearing before the court represented by senior counsel.
Outcome: The judge declined to make an interim property order but found it just to make orders under section 117. The husband was ordered to fund updated expert valuations, and a dollar-for-dollar order was made. The judge rejected the argument that such an order is impossible because its amount cannot be known in advance, holding that the overriding question is simply whether there are circumstances that justify a costs order that is just in the particular case.
That said, a dollar-for-dollar order is not a soft option, and it is not the court's first choice.
"The making of a dollar for dollar order is a discretionary order that is usually made only as an order of last resort."
There is a further trap at the other end of the case. In Shelbourne & Shelbourne [2019] FamCAFC 196 a dollar-for-dollar order had been made before trial. The husband then stopped paying his lawyers altogether, so nothing fell due under it, and at the final hearing the judge extended the order rather than discharging it. By then the husband's unpaid fees were 152,000 dollars and the wife's were around 264,000. The Full Court set that extension aside. Extending the order created a new liability of 152,000 dollars for the husband and a matching asset for the wife, against a final property division that only required him to pay her 191,305 dollars, and the judge had not weighed that impact when deciding what division was just and equitable. The Full Court restated the general rule that any litigation funding order has to be taken into account in the final property adjustment.
What helps an application in this position:
- Trace the money rather than arguing about the balance sheet. Show who pays the school fees, who services the loans, and which entity the lifestyle actually comes out of.
- Point to the lawyers on the other side. A party claiming poverty while running senior counsel is making your argument for you.
- Ask for section 117 in the alternative. Atkins & Hunt failed on the interim property limb and succeeded on the costs limb in the same judgment.
- Expect it to be reckoned up at trial. Shelbourne is the reminder that funding received during the case comes back into the final calculation.
Scenario 3: Someone else is paying your ex's legal bills
Common misconception: A parent or company that is not a party to the case is out of the court's reach.
Legal truth: The court can make orders against a non-party under section 117(2), but it will not do so simply because that person has money and is being generous. What matters is whether the non-party is genuinely mixed up in the assets in dispute.
"Exercising that 'great caution' to which the Full Court referred in McAlpin, I cannot find that it would be just and equitable to make such an order against the second respondent."
Edson & Whitney shows the limit. The husband sought a lump sum of 180,000 dollars from a second respondent who was not a party to the marriage, and the court refused. Standing behind a family member by paying their costs is one thing. Making orders against an impecunious party expecting somebody else to discharge them is another, and the second respondent there did not fall within the recognised categories for a costs order against a non-party.
Lao & Zeng is the other side of that line.
The couple met in 2006, married in late 2010 and separated in mid 2018, and over that period they built up a substantial portfolio of Australian property through trusts and companies. The wife was the appointor and trustee of the family trust. After separation, control moved: the wife appointed her own mother as appointor, and an amendment removed the wife as a corpus beneficiary. The husband said these were assets he and the wife beneficially owned, and applied to set the transactions aside.
The mother argued she was a disinterested third party who happened to be helping her daughter. That was rejected. She was already funding the wife's legal expenses by way of loan, and the primary judge found the evidence was not consistent with the couple having little or no beneficial interest in a portfolio built over nine years or more that she now controlled. On appeal she argued that a funding order could not be made because the money might never be recoverable, and that orders against a non-party require exceptional circumstances.
Outcome: The appeal was dismissed and the order stood. The mother was ordered to pay the husband 350,000 dollars in three tranches, the first 100,000 of which had already been paid. The court held there is no precondition of exceptional circumstances for an order against a non-party, and that irreversibility is not a bar under section 117(2).
"Reversibility and the ability to take the payment into account in the final hearing are considerations of fluctuating relevance having regard to the source of power under which the payment is sought."
Getting the order is one thing and collecting it is another. In Singer and Anor [2010] FamCA 506 the husband was ordered to pay 320,000 dollars in litigation funding, and his brother, as a third party, was ordered to allow him to secure the borrowing against the group's assets. Nobody disputed the amount or the need. The whole fight was about where the money would come from, and it produced a separate round of enforcement proceedings against a corporate group with a balance sheet of about 34 million dollars.
One related point worth knowing if family money is keeping you afloat. In Stubbs (No 3) [2025] FedCFamC1F 534 the mother had four formal loan agreements with her father. Three of them, totalling 150,000 dollars, were for living costs and Christmas expenses and were counted as liabilities in the property pool. A further loan of 100,000 dollars, taken out specifically for legal fees, was ignored as a liability. Borrowing from a parent to pay your lawyer does not reduce the pool the way an ordinary debt does.
What helps an application in this position:
- Connect the third party to the assets in dispute. A funder who also holds property you say belongs in the pool is in a very different position from a parent who is simply being kind.
- Show the funding is already happening. Evidence that the non-party is bankrolling one side answers the fairness argument directly.
- Plan the enforcement before you ask. Singer is a reminder that an order against an entity with illiquid assets can take another round of litigation to realise.
- Keep loan documents clean and label them accurately. A loan described as being for legal fees will be treated differently from one for living costs.
If your case involves assets held through a trust that your ex controls, see How Courts Identify Puppet Trustees in Family Trusts. If you suspect assets have been moved or concealed before the funding argument even starts, see What to Do When a Spouse Hides Assets in Divorce and Subpoena in Family Law: When Does It Become Fishing?. For how ongoing support is assessed separately from a property advance, see Spousal Maintenance Australia: Factors Courts Consider. And for the framework the final division works within, see How Australian Courts Divide Property: The Four-Step Process (2026).
What should you do if you cannot afford to run your family law case?
Stop looking for compelling circumstances and start showing the order is appropriate. Strahan removed the higher threshold that trial courts had been applying. The interests of justice are the overarching consideration, and the fact that you need funds to defray the costs of litigation, without which an injustice may be caused, is itself one of the recognised examples.
Work out what you are likely to receive before you decide what to ask for. Medlow failed because 15.5 million dollars of the pool was at risk in other litigation and could not be treated as available at trial. The person seeking the money carries the burden of proving it can be recovered, so do that arithmetic first rather than leaving it to the other side to raise.
A weak underlying claim will sink a strong need. Wall & Mitchell had a genuine need for 150,000 dollars and lost, because the respondent disputed both the de facto relationship and her contributions, and she could not have refunded a cent.
If the property route is closed, the costs route may still be open. Lao & Zeng confirms that irreversibility carries different weight depending on which power you rely on, and that it is not fatal under section 117(2). Atkins & Hunt and Ors is the same lesson from the other direction, with the interim property application refused and the section 117 application granted in one judgment.
Do not treat funding as a windfall. Whatever you receive is brought back into account when the property is finally divided. Shelbourne shows what happens when a court forgets to do that, and the correction went against the party who had been receiving the money.
Third parties are reachable, but only if they are part of the dispute. Lao & Zeng put a mother on the hook for 350,000 dollars because she held assets the husband said belonged in the pool. Edson & Whitney refused an order against a non-party who was simply standing behind someone. The difference is involvement, not wealth.
