Partial Property Settlement Orders: Getting Financial Relief Before Your Final Hearing

Property matters can take a year or more to resolve. When one person controls most of the money and the other is left struggling to meet legal fees and living costs, the law does not require them to simply wait it out.

Summary

• A partial property settlement order gives you an early, partial share of the property pool before your matter is finalised.
• It can be made by agreement, or by application to the Federal Circuit and Family Court of Australia.
• The court asks a single overarching question: in all the circumstances, is it appropriate and in the interests of justice to make the order?
• You do not need to show “compelling circumstances” — but you do need a genuine need, an identifiable source of funds, and an order that stays within the range of what you are likely to receive at the end.

What is a partial property settlement order?

A partial property settlement is exactly what it sounds like: an early distribution of part of the asset pool, made before the final hearing decides how everything is ultimately divided. It is sometimes called an interim property order.

Most family law property disputes take twelve months to two years to work through the court. For many people that timeline is manageable. For others it is not — particularly where one party has left the relationship with access to the bank accounts, the income and the assets, and the other is left without the means to pay for a lawyer, let alone the mortgage or the groceries. A partial property settlement is designed to relieve exactly that pressure, so that neither party is forced to settle early simply because they have run out of money.

It is worth distinguishing a partial property settlement from two related orders that are sometimes sought at the same time:

• A litigation funding (costs) order under section 117(2) of the Family Law Act 1975 (Cth), which is directed specifically at meeting a party’s legal costs.
• Spousal maintenance, which addresses ongoing living expenses where one party cannot adequately support themselves — under sections 72, 74 and 75(2) for married couples, or sections 90SE and 90SF for de facto couples.

These are separate mechanisms with separate tests, and the right combination depends on your circumstances. Where the need is for a lump sum drawn from the property pool rather than periodic support, a partial property settlement is usually the appropriate vehicle.

Where does the court’s power come from?

The power to alter property interests between separating couples sits in section 79 of the Family Law Act 1975 (Cth) for married couples, and section 90SM for de facto couples. The specific power to order an early or interim payment is found in section 80(1)(h) (with the equivalent for de facto couples in Part VIIIAB of the Act), which allows the court to make an order that a party pay a sum of money.

Since 10 June 2025, the Family Law Amendment Act 2024 has codified the court’s decision-making pathway for property matters directly into the legislation. This includes, at sections 79(2) and 90SM(2), the long-standing requirement that the court be satisfied it is just and equitable to make any order altering property interests at all. That requirement, drawn from the High Court’s decision in Stanford v Stanford, remains central. As the Full Court confirmed in Bevan & Bevan, it is not a mere threshold box to tick. It runs through the whole of the court’s reasoning.

The test the court applies

The leading authority on interim and partial property orders is the Full Court’s decision in Strahan & Strahan (Interim Property Orders). It sets out a two-step approach.

The two-step approach in Strahan & Strahan

Step 1.  Is the power enlivened?  The court considers whether it is appropriate to exercise the power under sections 79 and 80(1)(h). The test is not confined to “compelling circumstances” — the overarching consideration is the interests of justice.

Step 2.  Should the discretion be exercised?  The court then weighs the section 79 considerations so far as they can be assessed on the interim material, balancing the risk of unduly limiting the final orders against the circumstances that make an early payment just.

Two points from the case law are important to understand before you apply.

First, an early payment cannot be justified simply because you would ultimately receive that property, or more, at the final hearing. The Full Court made that clear in Marchant & Marchant: something more than an eventual entitlement is required.

Second, the court is cautious about anything that might compromise the final result. In Harris & Harris, the Full Court explained that either the property remaining after the interim payment must be enough to meet both parties’ legitimate expectations at the final hearing, or the order must be capable of being reversed or adjusted later if that turns out to be necessary. A final hearing is, ordinarily, a “once and for all” exercise — an interim order should not quietly pre-empt it.

The question is not whether you have a strong case. It is whether an early, partial payment can be made now without unfairly limiting what the court can do later.

What the court looks at in practice

Drawing the authorities together, an application for a partial property settlement is generally stronger where the following are present:

• A real disparity in financial position. Typically the other party controls most of the assets, the income, or both, and is in a position of relative financial strength.
• A genuine, explained need. You can point to a legitimate reason the funds are required now — meeting legal costs, keeping a roof overhead, or covering living expenses you cannot otherwise fund.
• An arguable case for a property adjustment. It must be reasonably arguable that it is just and equitable for the court to alter the parties’ interests at all.
• An identifiable source of funds. There must be a clear way to make the payment — savings, an offset account, a refinance, or the sale of an asset.
• An order that stays within your likely range. The amount sought should sit comfortably within what you could realistically expect to receive, so that the payment does not overshoot your entitlement.
• Reversibility, or ample remaining property. Either enough of the pool remains to protect both parties at trial, or the order can be unwound if needed. You cannot, for example, un-sell a family home.

The source of funds is often the real fight

In our experience the most contested issue is rarely whether there is a need — it is where the money will come from. If the funds are already sitting in an account, or can be released by refinancing, the path is relatively straightforward. The difficulty arises when the only realistic source is an asset one party wants to keep.

The court will not usually refuse a genuine, properly-sized request simply because releasing the money is inconvenient. Where an applicant has a real need and the amount sits within their likely entitlement, the court will often make orders to liquidate an asset or to require a refinance. There is a certain logic to this on the refinancing point in particular: if a party genuinely cannot refinance to release a portion of the other’s entitlement now, that itself may suggest they are not in a position to retain the asset and pay the other party out at the end — in which case a sale may be the fairer outcome regardless.

ILLUSTRATION — HYPOTHETICAL

Consider a separated couple after a long marriage. One partner has been out of paid work for years as the primary carer of the children and has no independent means; the other holds the savings and earns a substantial income but declines to provide support. The pool is modest but real, and both parties’ proposed divisions would leave the carer with well over the amount they need to fund the next stage of the litigation.

On those facts — a clear disparity, a genuine need, a payment drawn from available savings, and an amount safely inside the carer’s likely entitlement — a court could properly regard a partial property settlement as appropriate and in the interests of justice. Every matter turns on its own evidence, and this is offered only to show how the principles fit together.

How an application is made

There are two routes. The first, and always the preferred one at Quill Legal, is by agreement: many partial settlements are negotiated between the parties and formalised by consent, without the cost and delay of a contested hearing.

The second is by application to the court — either as an interim order sought in your initiating documents, or, if proceedings are already on foot, by an Application in a Proceeding supported by an affidavit setting out your financial position and the basis for the order.

In either case, full and frank financial disclosure is essential. The court can only assess whether an early payment is appropriate if it has a reliable picture of the asset pool, each party’s needs, and the proposed source of the funds.

Frequently asked questions

Do I have to prove “compelling circumstances”?

No. The authorities are clear that you do not need to establish compelling circumstances. The question is whether, in all the circumstances, it is appropriate and in the interests of justice to make the order. That said, you will need more than the fact that you would ultimately receive the property in question at the final hearing.

Can I get a partial settlement to pay my legal fees?

Often, yes. Funding legal costs so that a party can negotiate on a level footing is a recognised and legitimate need. Depending on the facts, this may be pursued as a partial property settlement, as a litigation funding (costs) order under section 117(2), or a combination of both.

Will an early payment reduce what I receive at the end?

Generally an amount received by way of partial settlement is brought to account during the final division of property, so it forms part of your overall entitlement rather than being paid on top of it. How it is treated depends on the circumstances, and it is something we will map out for you clearly before you apply.

How long does it take?

By agreement, a partial settlement can be finalised relatively quickly. A contested application depends on the court’s timetable, but because it is designed to relieve urgent financial pressure, it is dealt with well ahead of the final hearing.

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Talk to us about your options

If you are carrying the financial weight of a separation while your matter grinds on, you may not have to wait for the final hearing. We can assess whether a partial property settlement is open to you and the best way to pursue it.

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