‘The family home is in my ex-partner’s sole name and they’ve listed it for sale – what do I do?’
We have received this panicked phone call on many occasions. Usually, the answer includes lodging a caveat.
Special counsel Leeann Murphy explains.
Hello. I’m Leeann Murphy. I’m a special counsel in the Family Law Team at Cooper Grace Ward Lawyers. Today, I would like to talk to you about caveats.
There have been a few times when I’ve had clients call me panicked in circumstances where a property is in the name of a former partner and they’re about to sell it. Each case is different and requires specialist advice, but in most cases, a caveat may be what’s appropriate. A caveat is a notice that is put on the title of a property to inform people such as a bank or a prospective purchaser, that you have an interest in that property. It is not the same thing as being on the registered title, but it allows you time to make a decision and to get legal advice to decide what to do.
In Queensland, a caveat is registered with titles. It is vital that you obtain legal advice in relation to how to draft the document and the grounds upon which the caveat is lodged. If the document is not prepared properly or the grounds are not appropriate, there may be difficulties with having that document lodged. If this is a matter of urgency, you may, if it is not correctly prepared, lose that opportunity to register your interest on that property. It is vital at all times to obtain appropriate legal advice in relation to these matters.
In Queensland, a caveat will lapse either three months after it is lodged or within days after receiving the appropriate notice from the registered owner. In this respect, you would then be required to file an application in property settlement matters that will be in the Federal Circuit and Family Court of Australia to seek orders confirming or dealing with your interest in that property. Again, it is vital to obtain appropriate legal advice in relation to the drafting of that application. It is not a general or simple application to be sought and the specific applications must be made.
In family law matters, there are common scenarios where we would recommend that a caveat be lodged. For example, in some relationships, real property is owned by one party only. That allows them to have an opportunity to further encumber a property or to transfer the property or to sell the property. In these circumstances, if you believe there is a risk that your former partner will do any of those things, you should obtain legal advice immediately. Because of the tactical advantages that can be gained by doing a caveat properly and because of the risks involved in not doing a caveat properly, it is vital that you seek appropriate legal advice at all times.