So… you are separating, and you may be worried about your home and what your ex may be doing with your share: can they sell it without you knowing about it? Can they be increasing the debt owed on the home without your agreement?
Luckily, there are steps you can take to ensure your ex does not dispose of the home or any other real estate without you being notified. At Caroline Counsel Family Lawyers we can assist you assess the risk to your interest and offer you a range of possible options to secure your rights. One option is for you to consider is whether you are able to lodge a caveat in relation to your interest in the real estate and another is to seek an injunction in Court to prevent your ex from dealing with your rights. We can discuss which option (and others) might be right for you in your situation.
A caveat is a method by which you notify the world of your interest in real estate. It puts third parties on notice that if they intend to deal with the real estate, they will also need to do so subject to your interest. This means, for example, that the settlement of a sale cannot occur whilst your caveat remains on the property and has not been successfully challenged.
To lodge a caveat, you need to be able to claim an interest in the land. Even if you are not registered on title, you may have a caveatable interest in the real property.
In Family Law situations, we most commonly see the interest claimed being an ‘implied, resulting or constructive trust’. This means you are claiming that the person who legally owns the land (their name is on title as the registered owner) is holding part of that land on trust for you.
It is important to understand that you don’t automatically have an interest in your ex’s property just because you were married or in a de facto relationship. To have an interest you need to demonstrate that you have contributed to the acquisition, maintenance, or improvement of the property and this need not be a purely financial contribution.
We can assist you by advising you about whether you have made the kinds of contributions that will support you claiming an interest in the land.
Another way of protecting your interest in your real property from your ex trying to sell the property without your agreement is by seeking an injunction. You can do this by filing an application with the Family Court or Federal Circuit Court of Australia.
The important thing to be able to demonstrate with injunctions is that there is a real and objective risk of your ex disposing of property – a mere suspicion is not enough. We can assist you work out if the facts in your case support you seeking such an injunction.
If you have separated and you have reason to believe your ex is disposing of property, then Caroline Counsel Family Lawyers can assist you. We can provide you with the information you need and the advice to help you make a decision about which option suits your situation.
Sebastian Tottle, Associate and Caroline Counsel, Principal
Caroline Counsel Family Lawyers:
P: +61 3 9320 3900