Do you need to lodge a Caveat?
It is important to understand that when you separate, whether you were married or in a de facto relationship, if there is ‘real property’ involved, such as the marital home or an investment property, then you may need to act quickly to protect your interests in that property if you are not a registered owner on the title.
Surprisingly, many people do not know if the real property is in their partner’s sole name, their own name or held jointly. It is not uncommon for the property to be registered in only one parties name for commercial/tax reasons, or it may remain registered in only one name because the property was owned by one party prior to the marriage or commencement of the relationship.
If this is the case, the registered owner may sell the property without notice to the party who is not registered on the title, even though the property may form part of the parties’ asset pool, and each party may be entitled to a portion of that property after separation.
If the property is sold to a third party without your knowledge, and depending on whether settlement has been finalised or not, it is extremely difficult, expensive and time-consuming to attempt to recover the property and/or sale proceeds by way of application to the Court, and ultimately, it may be irrecoverable.
Help – I don’t know whose name the property is in?
Conducting a title search, which is a simple task, can clarify the situation and detail in whose name the property is held, whether it is held as joint tenants or tenants in common, if there is a mortgage on the property and other information which can be particularly useful when considering your options.
Lodging a Caveat
If the real property is held only in your spouse’s name, it is particularly important to seek legal advice in relation to lodging a caveat over the property to ensure that the property can’t be sold or further encumbered without notice to you while a property settlement is negotiated between the parties.
In order to lodge a caveat, you must have a caveatable interest in the property, and a Solicitor from Affinity Lawyers can advise you if you have the requisite interest in the property.
Once lodged with the Department of Natural Resources and Mines (‘DNRM’), a caveat appears on the title for the property, and essentially records your interest in the property. While the caveat is on the property, it restricts the ability for the registered owner to sell or otherwise deal with the property.
This will allow the parties time to negotiate a property settlement and come to an agreement in relation to who will retain the property, and if it is to be sold, how the funds will be disbursed between the parties.
It is important to remember that a caveat remains ‘alive’ on the property for a period of three months only, and if settlement has not been negotiated between the parties within that time, the only way to keep the caveat on the property is to commence Court proceedings and provide a copy of those proceedings to the DNRM.
We would strongly recommend that as soon as possible after separation you arrange for an initial consultation, which is free of charge, with one of our friendly and experienced Family Lawyers at Affinity Lawyers to discuss your rights and options.
This will allow you to make an informed decision as to how to proceed, and you will be aware of any important financial or personal matters which require your consideration and urgent action to protect your interests.
At Affinity Lawyers we are able to provide you with legal advice tailored to your specific circumstances, so please do not hesitate to contact our friendly Family Law Team on 07 5563 8970 to discuss your matter.