Caveatable Interest Family Law: A 7-Point Comprehensive Guide

caveatable interest family law | Melbourne Family Laywers

What is a Caveat?

Caveatable interest family law is someone with a legitimate claim or interest in the property.

In Australian law, a caveat is a document that can be lodged.

It doesn’t create an interest in the property but protects it from being dealt with, such as selling or transferring.

It serves as a notice to any third party, like a financier, that the person lodging the caveat (the caveator) is interested in that property.

Who can lodge a caveat?

Not just anyone can lodge a caveat. The person lodging, known as the caveator, must have a “caveatable interest.”

This means that they have a legitimate claim or interest in the property.

For instance, if a purchaser signs a contract to buy real estate, they acquire a “caveatable interest” and can lodge a caveat to protect that interest.

However, simply being in a marriage or de facto relationship doesn’t automatically grant a caveatable interest.

Can I Lodge a Caveat on My Parents’ House?

In family law and property disputes, you might wonder if lodging a caveat on your parents’ house is possible. The answer is whether you have a “caveatable interest” in the property.

This means you must have a legitimate claim or interest, such as being entitled to a share of the property through a will, family law settlement, or other legal agreements that grant you rights over the property.

For example, suppose you have contributed significantly to the property’s value or have been promised a share of the property in a will. In that case, you might have grounds to lodge a caveat to protect your interest.

However, it’s crucial to note that lodging a caveat without a valid claim could lead to legal repercussions, including potential compensation claims from the property owner for any loss suffered due to the caveat.

Given the complexities surrounding caveatable interests and the legal implications of lodging a caveat, seeking professional legal advice is essential. A lawyer can help you understand your rights, assess whether you have a valid caveatable interest, and guide you through lodging a caveat if appropriate.

Can I Put a Caveat on My Ex’s House?

In the aftermath of a separation, it’s common to worry about the division of assets, particularly the family home. Yes, you can put a caveat on your ex’s house if you believe you have a legitimate interest in the property.

This legal tool warns others that you have an interest in the property, preventing its sale or re-mortgage until your claim is resolved.

Step-by-Step Guide: How to Lodge a Caveat

Step 1: Determine Your Interest

  • Assess whether you have a legitimate legal or equitable interest in the property. This could be due to financial contributions towards the property’s purchase, mortgage payments, or significant improvements made to the property.

Step 2: Seek Legal Advice

  • Before proceeding, consult with a legal professional. They can help determine if your claim justifies a caveat and guide you through the process, ensuring you meet all legal requirements.

Step 3: Obtain the Necessary Forms

  • Visit your state or territory’s Land Titles Office website or physical office to access the required caveat lodgement forms.

Step 4: Prepare Supporting Evidence

  • Gather evidence of your interest in the property. This may include bank statements, receipts, or contracts that prove your contributions or entitlement.

Step 5: Complete the Caveat Form

  • Please complete the caveat form with accurate details of your claim. Ensure all information is correct to avoid potential disputes or legal issues.

Step 6: Submit the Form and Evidence

  • Lodge the completed form and supporting evidence with the Land Titles Office. Depending on the jurisdiction, This can be done in person or online.

Step 7: Pay the Lodgement Fee

  • Pay any applicable fee for lodging a caveat. Fees vary by state or territory, so check with the Land Titles Office for the exact amount.

Step 8: Notification

  • Once lodged, the Land Titles Office will notify the property owner of the caveat. This serves as an official notice that your interest must be considered before any transactions involving the property can proceed.

Grounds for Lodging a Caveat in a Family Law Matter

A caveat is a legal instrument anyone can lodge with a legitimate interest in a property.

Once registered, it acts as a notice on the title, alerting potential buyers that a third party might have rights over the property.

This means that the property cannot be sold, transferred, or further encumbered until the caveat is addressed.

Lodging a caveat can be a strategic move in family law matters.

It ensures the property can’t be disposed of while settlements are negotiated or finalized.

This can be especially crucial if there are concerns about a former spouse selling the property and moving the funds offshore, making them hard to recover.

Risks of lodging a Caveat in your Family Law Matter

While lodging a caveat can be a protective measure, it’s not without risks.

You might be liable for compensation if you lodge a caveat without a legitimate caveatable interest and the property owner incurs a financial loss.

It’s crucial to consult with a lawyer to determine if you have a valid caveatable interest and if lodging a caveat suits your situation.

What are my rights in family law?

In family law, just because you have a claim to an asset pool or a house, doesn’t mean you automatically have a caveatable interest.

Removing a caveat from a property

If a caveat is lodged against your property and you believe it’s unjustified, you can take legal steps to have it removed.

Pethrick & Folmar Overview

In the Pethrick & Folmar situation, the woman in a de facto relationship lodged a caveat on a property solely owned by her partner and another co-owned by him and his sibling.

She based her claim on ‘implied, resulting, or constructive trust.’

Yet, her formal request for financial settlements vaguely asked for “a fair asset distribution” without specific details.

The man countered, wanting the caveats removed from both assets, expressing his intention to sell them to cover debts, including legal expenses. The Court remarked:

“It is trite that contributions do not, in and of themselves, give rise, without more, to an interest in property. If that were so, sections 79 and 90SM of the Family Law Act might well be otiose.” Pethrick & Folmar [2022] FedCFamC1F 905 (17 November 2022) [26].

The Court’s decision was in favor of the man. They mandated the woman to bear the costs of removing the caveats, allowing him to sell the properties.

Always Seek Legal Advice: Caveatable Interest Family Law

Navigating the complexities of caveatable interests in family law can be challenging, especially when emotions and significant assets are involved.

While caveats are protective in property disputes, they come with intricacies and potential pitfalls.

Understanding the implications of lodging or challenging a caveat in the context of family law is paramount.

Given the potential risks and the nuanced nature of property rights, seeking legal advice from a seasoned professional is not just recommended but essential.

Engaging with a lawyer ensures that your interests are safeguarded and that you’re making informed decisions every step of the way.

Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.

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