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Is All of Your Property Held in Your Partner’s Name, Leaving You in a Difficult Situation After Separation?

By 12 June 2019 Family Law

What is a caveat?

Caveats may be lodged against the title to land to prevent certain dealings with that land. A person who lodges and has the benefit of the caveat is known as the “caveator” and the person who owns the land is known as a “caveatee”. The caveat is a document which stops the caveatee or any other person dealing with the land. It informs any potential purchaser or anyone wishing to deal with the land that the caveator has an interest in that land.

Caveats: How to protect your interest in property owned by your ex-partner in a family law proceeding

In a family law proceeding, all property owned by either or both of the parties is included in the property pool.  Sometimes, the primary asset is the property in which the parties have been living throughout the relationship. If the property is owned by one of the parties, but the other has made contributions to its acquisition, improvement or maintenance throughout the relationship, that person may have a caveatable interest in the property. Contributing to mortgage repayments and other property related expenses or physically working on the property to improve it may give rise to a caveatable interest.

We strongly recommend that you seek legal advice from a family lawyer prior to lodging a caveat.

How is a caveat lodged?

In Queensland a Form 11 is prepared and lodged with the Titles Registry. The form must be properly drafted such that the caveator’s interest may be recognised by the courts as capable of sustaining a caveat and must be supported by evidence. After the form is lodged, the Titles Registry checks to make sure it meets particular legislative and administrative requirements. If the caveat meets these requirements, it will be registered.

A person who lodges a caveat without a proper interest in the land may be liable to compensate a person who suffers loss or damage as a result of the caveat.

Removing a caveat

Caveats do not need to be removed from the Title after a certain time. However, they can be removed by an order of the Court, at the caveator’s request by lodging the appropriate form or when a court makes a determination in relation to how the property will be dealt with.

A caveat will automatically lapse three months after the caveator has lodged it, unless the caveator starts court proceedings and gives the required notice of such proceedings to the Titles office before the caveat has lapsed. In family law proceedings, this usually involves filing an Initiating Application in the Federal Circuit Court or Family Court to initiate family law proceedings, seeking Orders in relation to the property.