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Caveats in a family law context
I have separated from my spouse but my name is not on the title to our family home. Can my former spouse just sell the house?
The short answer is no, if you have lodged a caveat over the home.
What is a caveat?
A caveat is a “registerable instrument” that is designed to prevent any further dealings on the title of a property (for example, a release of mortgage or a new mortgage being lodged). In a family law context, caveats are most often used to protect the property of a relationship that has broken down pending a property settlement being finalised. Not just anyone can lodge a caveat.
Who can lodge a caveat in a family law matter?
Prior to lodging a caveat, the person lodging the caveat (“the caveator”) must have what is called a “caveatable interest”. Just because there was a de facto relationship or a marriage that has broken down is not enough to support the caveator having a caveatable interest in a property. The caveator must be able to show that due to certain factors, the caveator has an interest in the property even though the property is not owned by them in a legal sense. To determine whether there is an caveatable interest, the following things are considered:
- Whether or not the caveator contributed fund towards the purchase of the property; or
- Whether or not the caveator has made financial contributions to the property for example, paid money towards mortgage repayments, rates and home insurance; or
- Whether or not the caveator has made non-financial contributions to the property – this can be things like DIY renovations; or in some cases
- Where the caveator contributed to the welfare of the family which benefited the legal owner of the property. For example, if the caveator was the primary carer of the parties’ children during the relationship which in turn, allowed the owner of the property to earn an income sufficient to purchase the property.
Important timeframes for lodging a caveat
Lodging a caveat is a fairly quick and low-cost process. Once a caveat is lodged, you generally have three months to file a Court Application in the Federal Circuit and Family Court of Australia seeking orders to resolve your property settlement with your former spouse (unless you have your former spouse’s consent to lodge the caveat, in which case there is no time limit to commence proceedings). This three month time limit can be reduced if your former spouse issues a notice to you to commence Court proceedings, in which case you must file a Court application within 14 days of receiving that notice. If you fail to comply, then the caveat will lapse. You cannot lodge another caveat on the same grounds. It is therefore imperative that you seek legal advice prior to lodging a caveat, due to the tight timeframes involved.
It is also important to understand that if you lodge a caveat without a reasonable basis for doing so, there can be serious consequences for you for example, an order for you to pay your former spouse’s costs in having the caveat removed or to compensate your former spouse for any damages incurred if they have suffered a financial loss due to the caveat having been lodged.
Get Advice?
If you have separated from your spouse and you are concerned that they are going to sell property without your knowledge and/or consent, you are encouraged to seek legal advice quickly about whether or not a caveat is appropriate in your circumstances.
Contact our office to make an appointment with one of our solicitors to obtain advice on your situation on (07) 4963 2000 or through our online contact form below.