When separating from your spouse or de facto partner you should always consider protecting any interest that you may have in real or personal property.
In the family law space, caveats are most often used to protect a spouse’s interest in a property of the relationship pending the resolution of their family law dispute.
A caveat is a statutory injunction which notifies others of an interest in a piece of land. It is a document registered with Land Victoria by a person who is not a registered owner of a property and sets out what interest they claim to have in that piece of land. That caveatable interest is recorded on the title and prevents further dealings being registered, such as a sale or a new mortgage, until the caveat lapses or is withdrawn.
Caveats are relatively quick and inexpensive to lodge. However, a lodging party must ensure they have a proper caveatable interest otherwise they may suffer significant cost consequences.
The mere existence of a marriage or de facto relationship or ongoing family law proceedings does not amount to a caveatable interest in a piece of land.
The most common caveatable interests claimed between spouses is the existence or an implied or resulting trust. Whether an implied trust has been created is determined on a case-by-case basis but there are a few tell-tale factors such as:
- Direct financial contributions such as contributions to mortgage or council rates payments,
- Non-financial contributions or improvements made to the property such as undertaking renovations, or
- Direct financial contributions such as one spouse providing deposit or purchase monies for the piece of land but not being registered as an owner on the title.
Generally speaking, the caveat will be removed with the consent of the caveator once a final family law property settlement has been reached.
If however, a person in a family law dispute does not have a caveatable interest in a property, there are other mechanisms available to protect assets from being disposed of. If a spouse is concerned that the other spouse may transfer a property to someone else or take out a mortgage to defeat any family law claim, you may be entitled to seek interim injunctive relief under the Family Law Act 1975.
This type of application aims to prevent a person from dealing with an asset without the consent of the other party.
Before lodging a caveat, we strongly recommend you obtain legal advice from Agar Legal as to whether a caveat is appropriate in your family law matter. We will also discuss alternative protective steps with you to ensure any claim you may have arising from a separation is protected.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.
