Restraining Property, Cross-Border Litigation and Interim Maintenance in High-Value Family Law Disputes

The Full Court’s decision in Aguirre & Aguirre [2026] FedFamC1A provides an important reminder that interlocutory orders in family law proceedings, particularly those restraining property dealings or litigation rights, must be grounded in the correct legal principles and supported by clear reasoning. 

The case arose from a series of interim orders made in complex property proceedings involving corporate interests and significant assets. The appeal concerned asset preservation injunctions, an anti-suit injunction affecting a company associated with the husband, and interim spousal maintenance.

A central issue was the Magistrate’s decision to restrain dealings with certain assets pending final determination of the property dispute. The Full Court emphasised that such orders are not granted simply because proceedings are on foot or because there is distrust between parties. 

Rather, an applicant must demonstrate a real risk that assets will be dissipated or otherwise dealt with in a manner that would frustrate the Court’s ability to do justice at trial. The Full Court criticised the absence of clear reasoning explaining why such a risk existed. The failure to identify and apply the governing principles meant the injunction could not stand. The decision reinforces that asset preservation orders, particularly in matters involving substantial commercial interests, require a properly articulated evidentiary foundation.

The Full Court also addressed the grant of an anti-suit injunction restraining proceedings involving a company connected to the husband. The magistrate had approached the issue by undertaking what was effectively a balancing exercise, considering whether the Australian forum was more convenient than the alternative proceedings. The Full Court held that this approach misstated the law. The correct inquiry is whether the foreign or parallel proceedings are “clearly inappropriate” such that it is necessary to restrain them. Because an anti-suit injunction interferes with a party’s right to pursue litigation, the threshold is deliberately high. The failure to apply that test constituted an error and resulted in substantial injustice to the company whose proceedings had been restrained.

In contrast, the Full Court rejected the challenge to interim spousal maintenance. The husband argued that the wife had access to sufficient funds from the asset pool and therefore could not demonstrate that she had a financial need. The Court reaffirmed that access to capital in a theoretical sense is not the same as an ability to meet day-to-day living expenses. The existence of property that may ultimately be distributed between the parties does not necessarily negate a present need for maintenance, particularly where the applicant would otherwise be required to incur debt or liquidate assets prematurely. The interim spousal maintenance orders were therefore allowed to stand.

Tips

For practitioners acting in high-net-worth matters, the decision highlights three practical points: 

1. Courts will require cogent evidence before granting injunctions that restrict the use or control of substantial assets and the allegations of potential dissipation must be more than speculative;
2. Attempts to restrain foreign or parallel proceedings often arising where corporate structures or international investments are involved, will only succeed where the stringent “clearly inappropriate forum” threshold is satisfied; and
3. The case underscores the continuing distinction between wealth and liquidity even where parties are asset rich, interim maintenance may remain appropriate if one party lacks practical access to funds for ordinary reasonable living expenses.

Ultimately, the case of Aguirre is a reminder that in high-value family law litigation, interlocutory orders capable of affecting corporate interests, litigation rights or significant property must be justified by clear legal reasoning and careful application of principle, rather than broad discretionary notions of fairness.

Should you require assistance or advice with a family law matter, please do not hesitate to contact our Chad Heslop, Special Counsel, Private Advisory - Family & Relationships on 03 7054 5600 or cheslop@ajandco.com.au for a confidential discussion.