FOSSE & SALVAGE

In the Family Court of Australia, before Tree J, the wife, Ms Fosse, sought interim relief including an order for litigation funding and spouse maintenance. The husband, Mr Salvage, sought the dismissal of the wife's application. A cohabitation agreement was a central element of the dispute.

The court was required to determine whether the cohabitation agreement precluded the wife from seeking litigation funding under s 117 of the Family Law Act 1975 (Cth). Additionally, the court needed to consider whether the circumstances justified an order for litigation funding in favour of the wife, and whether she was entitled to interim spouse maintenance. The court also had to assess if the cohabitation agreement, entered into after separation, engaged s 90UI of the Family Law Act, particularly given the wife's inability to support herself at that time.

Tree J found that the terms of the cohabitation agreement did not prevent the wife from seeking litigation funding orders under s 117. The court was satisfied that the husband had the capacity to meet his litigation costs and that the wife lacked the ability to do so. Consequently, the court deemed it just in the circumstances to grant litigation funding in favour of the wife. Furthermore, the court was satisfied that the cohabitation agreement came into effect after separation and that the wife was unable to support herself when it did.

The court ordered that within 14 days, the husband pay $100,000.00 into the trust account of the wife's solicitors for her legal costs. Until further order, the husband was also ordered to pay the wife interim spouse maintenance of $516.05 per week.