Caveats should be considered where title only in the name of one spouse
The question of who gets a home when a couple separates can be complicated, especially if the title is held by just one member of a former partnership. Splitting partners should consider registering a caveat on title to real estate only in the name of the other spouse, as the former couple formalises its split.
Parke Lawyers Managing Director Jim Parke says parties often forget about property titles when working out who lives where and assessing their share of a potential property settlement.
Someone splitting from their partner, who has not appeared on the title of an asset, can register a caveatable interest over a property that forms part of the “asset pool.”
Caveats set conditions, stipulations or limitations on transferring a property to another party.
“Property settlement can be an important part of winding up your affairs after the end of a relationship. Splitting partners should be aware they have options to restrict the transfer of an asset held by a former partner or a related entity by putting a caveat on a property, just like a bank does.”
“Caveats restrict the transfer of a property and can be used as former couples set down a path to dividing their assets after the breakdown of a relationship.”
Mr Parke recommends splitting partners consult a lawyer to help lodge a valid caveat.
“A splitting partner could lodge a caveat after separation to ensure any property transfers take into account their potential share if the asset is sold. Getting timely family law and conveyancing advice can be important to ensuring you get a fair share of the asset pool from a relationship, especially if there’s a likelihood assets may be sold or any other party might try and register an interest over a property,” he says.
People that were either in married or de facto partnerships are entitled to property settlements after the breakdown of a relationship, with financial settlements now simplified for former de facto partners since changes to Australia’s Family Law Act 1975.
The federal Civil Law and Justice Legislation Amendment Act 2018 passed last year levelled the playing field for former de facto partners, simplifying property settlements for those couples who had lived together as a partnership but had not married each other.
Mr Parke acknowledged the regime for financial settlements for former de facto partners was changing, with former de facto couples who missed their time window for launching financial settlements now able to make Application for Consent Orders to avoid Family Court proceedings altogether.
“While former partners can lodge a caveat on property ahead of proposed settlements, changes to the Family Law Act lend themselves to a more collaborative, non-acrimonious approach to family law matters. Where the former couple can amicably work out their family law matters, they minimise stress and can move on with the next phase in their lives.” Mr Parke says.
Caveat pricing updated
Land Use Victoria oversees land transfers and caveat activity under a series of Acts in Victoria, including the state Transfer of Land Act 1958.
Victoria’s Department of Land, Water and Planning charges $49.20 for most paper-based caveat form lodgings and $40.10 for electronic transactions. Its forms can be downloaded from Land Use Victoria. The cost of imposing a single caveat in Victoria through the electronic settlements service PEXA increased by 22 cents, or 1.4%, to $16.06 on 1 July 2019. The cost of multiple caveats increased by 33 cents, or 1.2%, to $27.94.
PEXA’s cost for a single caveat imposed with a financial settlement increased 44 cents, or 1.4%, to $30.91, while multiple caveats imposed with a settlement increased 66 cents, or 1.4%, to $47.52. Withdrawal of caveats with financial settlement now costs $30.91 for single caveats and $47.52 for multiple caveats, while an ordinary caveat withdrawal costs $16.06 for a single caveat and $27.94 for multiple caveats. The new PEXA pricing schedule can be found at pexa.com.au/pricing.
Parke Lawyers has a team of family separation and divorce lawyers who are highly qualified in their field and experienced with all aspects of family law. This was recognised in the 2018 APAC Legal Awards when Parke Lawyers was awarded Best Family Law Firm – Australia. Family law is increasingly complex, so it is important for clients to know their lawyer is up-to-date with the latest changes and knows how to get results.