Can I Lodge a Caveat Over Property After Separation?

What Is a Caveat?

A caveat is a notice recorded on the title of land that warns anyone dealing with the property that another person claims an interest in it.

In practical terms, a caveat can prevent or delay the registration of certain dealings with the property unless the caveator's claim is first addressed.

A caveat does not determine ownership of the property, nor does it automatically give a person a share of the property. Rather, it serves as a mechanism for protecting an alleged interest until the dispute can be resolved.

Can a Former Spouse or Partner Lodge a Caveat?

Potentially, yes.

Following the breakdown of a marriage or de facto relationship, a party may claim an equitable interest in property even though they are not registered on the title.

Where a sufficient legal basis exists, a caveat may be available to protect that claimed interest pending negotiations or family law proceedings.

However, a caveat should never be lodged merely as a tactical measure or bargaining tool.

A person lodging a caveat must have a genuine caveatable interest recognised by law.

When Might a Caveat Be Appropriate?

Each case depends on its particular circumstances, but caveats are commonly considered where:

• Real estate is registered in the sole name of one party.
• There is a concern the property may be sold or transferred.
• Significant contributions have been made by the non-registered party.
• Property settlement negotiations have commenced or are anticipated.
• Family law proceedings are underway or contemplated.

Obtaining legal advice before lodging a caveat is important because an incorrectly lodged caveat may expose the caveator to legal consequences.

What Happens After a Caveat Is Lodged?

Once registered, a caveat may restrict certain dealings with the property until:

• The caveat is withdrawn.
• The parties reach agreement.
• A court orders its removal.
• The underlying claim is otherwise resolved.

The existence of a caveat often encourages parties to address property settlement issues before transactions can proceed.

Are Caveats the Only Option?

No.

Depending on the circumstances, other forms of protection may be available, including:

• Negotiated undertakings.
• Injunctions.
• Family Court orders.
• Consent orders dealing with property interests.

The most appropriate strategy will depend on the nature of the assets and the level of risk involved.

Obtaining Advice Early

Property settlements frequently involve family homes, investment properties, trusts, businesses and superannuation interests.

If you are concerned that a former spouse or partner may dispose of property before a settlement is reached, obtaining legal advice promptly is important. Early intervention may help preserve assets and protect your position while negotiations or proceedings are ongoing.

If you require advice regarding separation, de facto relationships, property settlements or caveats over land, contact Parke Lawyers for assistance.