Can You Get an Interim Property Settlement Before the Final Settlement?

The Current Section 79 Framework

Section 79(1) confers a broad power on the Court to make such order altering the interests of the parties in property as the Court considers appropriate. That broad power is disciplined by section 79(2), which prohibits the Court from making a property order unless satisfied that, in all the circumstances, it is just and equitable to make the order.

Section 79(3) requires the Court to identify the existing legal and equitable rights, interests and liabilities of the parties in property. Sections 79(4) and 79(5) then set out the matters the Court must consider — the contributions of the parties and the parties’ current and future circumstances — grouped for legislative clarity in the reorganised statutory structure. Section 79 also incorporates the Court’s obligation to consider the effect of family violence where relevant.

The corresponding provisions for de facto parties are found in section 90SM in materially equivalent terms and with equivalent structural reorganisation. References below to section 79 should be read as extending to section 90SM for de facto parties unless the context requires otherwise.

The Interim / Final Distinction

An interim property order is not a distinct species of order created by separate legislation. It is an order under section 79 (or section 90SM) that operates before final orders are made. The same statutory conditions apply to it. The Court cannot make a property order that is not just and equitable, and cannot make an interim order that unduly compromises the just-and-equitable adjustment at final hearing.

In practice the interim / final distinction is a distinction about the state of the evidence. At an interim stage the pool may not be fully identified, some asset values may be in dispute, contributions have not been fully tested, and future circumstances are known only in outline. The Court makes an interim order on the material available and adopts safeguards to protect the final adjustment.

Common Forms of Interim Property Order

Common forms include orders for the sale of an asset, orders directing the payment of an existing liability from identified funds, orders preserving an asset, orders releasing a defined amount of funds to a party, orders directing payment to a creditor or professional in respect of a liability, and orders regulating the day-to-day management of property pending final orders. The form of order depends on the facts.

The label attached to an order is not decisive. An order described as an “interim distribution”, a “partial property settlement” or an “interim consent order” is still governed by section 79 (or section 90SM). The question is always whether the order is one the Court may properly make under the section.

Matters the Court Considers at the Interim Stage

The Court does not apply a four-step or other rigid formula at the interim stage. It weighs the material available in light of the statutory framework. Matters that may be considered include:

• Whether the pool is sufficiently identified to permit the Court to be satisfied that the proposed order is just and equitable.
• Whether the property remaining after the proposed order is capable of supporting a final adjustment on any realistic view of the case.
• The applicant’s reason for the funds and whether alternative sources are reasonably available.
• The prejudice to either party if the order is or is not made.
• Disputed ownership, third-party claims and third-party rights.
• Tax, duty and transaction consequences.
• Any need to preserve or protect assets that would otherwise be dissipated or lost.

There is no automatic entitlement to a percentage of the pool at the interim stage. There is no rule that interim relief follows from hardship. The Court exercises the section 79 discretion on the facts.

Interim Relief for Legal Fees

An application for the release of funds to meet legal fees is dealt with as an interim property order. The Court treats such an order as an early release of part of the applicant’s likely final entitlement rather than as an order to equalise the parties’ legal spending. The evidence may address actual costs, the state of the pool, the applicant’s access to alternative funding, and the safeguards that will ensure accounting at final hearing.

Interim Property Orders vs Spousal Maintenance vs Injunctions vs Litigation Funding

Interim property orders address property rights and their distribution. Spousal maintenance and de facto maintenance under sections 72 and 74 or sections 90SE and 90SF address the need of one party and the capacity to pay of the other. Injunctions under section 114 or section 90SS regulate conduct, preserve assets or restrain particular steps. Commercial litigation funding is a separate contractual arrangement outside the Family Law Act.

Choosing the right characterisation matters. It affects the evidence required, the form of the order, the accounting at final hearing and the interaction with other relief. An application dressed up as one form of relief but in substance seeking another may fail on that basis alone.

Disclosure and Evidence

Disclosure is governed by Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The duty applies at interim hearings as well as at final hearings. An interim property application supported by deficient disclosure is likely to be refused or narrowed.

The evidence may address the pool and its values, liabilities, income and expenses, the applicant’s reason for the funds, the safeguards proposed, the impact on third parties, and the interaction with any related proceedings. The precise procedural requirements for the application depend on the current Rules and on the circumstances; it should not be assumed that a single rule invariably applies to every interim application.

Valuation and Reserves

Where an interim order will convert a non-cash asset to cash (for example by sale) the Court will consider the transaction and disposal costs, contingent tax and duty, and the appropriate reserves. Where valuations are in dispute, an interim order may be framed to avoid locking in a valuation that is contested. Reliable valuations remain important; unverified estimates can distort the interim order and complicate the final accounting.

Entities, Trusts and Third Parties

Company and trust funds are not freely available to the parties personally. Distributions require compliance with the company’s constitution, the trust deed, directors’ duties, trustee duties and (where applicable) Division 7A of the Income Tax Assessment Act 1936 (Cth). Family provision from a trust with independent beneficiaries has further limits.

Third parties such as lenders, mortgagees, parents asserting loans, business partners, beneficiaries and secured creditors are not bound by orders to which they are not parties. Joinder under the current Federal Circuit and Family Court of Australia (Family Law) Rules 2021 is considered where a third party’s rights will be affected. The Court weighs the third party’s position in shaping any interim order.

Superannuation, Bankruptcy and Related Regimes

Superannuation is dealt with under Part VIIIB (married) or Part VIIIC (de facto). It generally cannot be treated as immediately available cash and is not ordinarily used as the source of interim distributions.

Bankruptcy affects both the property available and the parties involved. Property of a bankrupt vests in the trustee in bankruptcy under the Bankruptcy Act 1966 (Cth) as provided by that Act, subject to statutory exceptions. Provisions of the Family Law Act 1975 (Cth) address the intersection with family-law property proceedings. A trustee in bankruptcy may seek to be joined in appropriate cases. Interim orders directed to vested property require the trustee’s involvement.

Possible Safeguards in Interim Orders

• Payment to a controlled account or directly to a creditor or professional rather than to a party in cash.
• Requiring an undertaking that the payment will be brought to account at final hearing.
• Preserving sufficient property to support a range of final adjustments.
• Requiring disclosure updates or independent valuations before further steps.
• Reserves for tax, duty and contingent liabilities.
• Sale fallback arrangements where relevant.

Final Accounting

An interim payment is not additional to a party’s final entitlement. At final hearing the Court considers the payment as property received or as an advance against the party’s entitlement, or as a payment of a liability that has been made. The interim amount does not set a floor on the final entitlement and does not entitle the paying party to a corresponding uplift.

The Court makes the final adjustment on the complete statutory assessment. An unwise interim payment can distort the final result; a properly-structured interim payment is neutral in its effect on the final adjustment.

Time Limits

For married parties, section 44(3) generally requires an application for property settlement or spousal maintenance to be made within 12 months after the divorce order took effect. Section 44(4) permits leave out of time in circumstances defined by the statute.

For de facto parties, section 44(5) generally imposes a 2-year period after the end of the de facto relationship, and permits an application at any time by consent of both parties. Section 44(6) permits leave out of time in circumstances defined by the statute.

The current text of the section should be checked before any application is filed. Time limits are strict and adverse costs consequences can attend late applications filed without leave.

Interaction with Final Orders

An interim order does not decide the case. It sets a partial position that will be reviewed at final hearing in light of the fuller evidence. The Court retains the power to make final orders that adjust for the interim position, including by declining to order further distributions to a party who has received an interim payment.

Related Reading

For related topics see our articles on the current property settlement process, dealing with assets after separation and bankruptcy and property settlement.

Conclusion

Interim property relief is a real and useful jurisdiction but is exercised with care. It is not a shortcut to a partial victory and it does not remove the need for a proper final adjustment. Applications supported by full disclosure, an evidenced reason for the funds, appropriate safeguards and a workable path to final orders are the applications that make progress; applications that do not respect those elements are less likely to succeed.

Frequently Asked Questions

How Parke Lawyers Can Help

Parke Lawyers' Family Law team acts for separating spouses and de facto partners on interim property applications and the wider property settlement — disclosure, valuation, structural considerations and the just and equitable requirement under sections 79 and 90SM as amended with effect from 10 June 2025. Engage us early so the need for interim relief, supporting evidence and relationship with final property orders can be assessed promptly.