Where there has been a relationship breakdown and there is real property involved (for example the matrimonial home or an investment property), then depending on how the property is held by the parties, a caveat may need to be lodged over the property to protect your rights and interests in it before your ex has a chance to sell or further encumber the property without your knowledge.
If you are not listed on the title to the property as a registered owner, then there is a risk that the registered owner can sell the property or encumber the property (by way of loan/mortgage) without your consent.
Accordingly, if you are the ‘other party’, and have an interest in the property despite not being registered on the title, it is vital that you obtain legal advice about lodging a caveat as soon as possible.
A caveat is a legal document which is lodged and registered with the Titles Office and it acts as a ‘stop’ between the property and the ability for the registered owner (or others) to sell the property, or further encumber it (by way of loan/mortgage) without your consent or knowledge.
While the caveat remains in place, the Titles office will not accept any further dealings for lodgement over the property, and therefore any equity or interest in the property remains untouched until a final decision or arrangement can be made or agreed to. An agreement can be reached by way of consent between the parties as a result of property settlement negotiations, or a decision in respect of the property can be made by court order. A caveat can also lapse if certain procedures are not followed correctly after the caveat has been lodged, or indeed if there are errors contained in the caveat document itself. Once a caveat has been registered, it remains valid for three months only before it will lapse, and to keep it on foot, court proceedings must be commenced during this time and served on the Titles department.
Once proceedings have been commenced, the caveat usually remains in place until an agreement is reached by the parties or a court order.
It is vitally important that legal advice is sought as soon as possible after separation to ensure that your rights and entitlements are protected, and to avoid an expensive court battle if you find out too late that your real property has been sold out from under you.
Our experienced, professional and friendly family law team at Affinity Lawyers are ready to assist you in relation to all family law matters, so please feel free to contact us today to arrange your appointment on 5563 8970.