How do I protect my interest in a house or land after separation?
If you have separated or are facing separation from your partner, you may be concerned about how to protect your interest in a house or land, particularly if that house or land is not in your name.
If this sounds like you, you may wish to consider lodging a Caveat as you prepare to finalise a property settlement.
Protecting your interest with a Caveat
A Caveat is a document that can be lodged on the Certificate of Title of a property to give notice of your interest in that particular property. Its effect is to prevent any further dealings with the property (such a sale or refinance of mortgage) without the Caveat being removed first.
It can be a useful tool if you have separated from your ex, and you do not have a registered interest in a particular house or land, such as the former family home you were living in or an investment property.
Step 1 – do you have a registered interest?
Before lodging a Caveat, the first step to take is to make sure that you do not have a registered interest in the property i.e. you are not recorded on the Certificate of Title. This can be confirmed by obtaining an electronic copy of the Certificate of Title from Land Services SA.
Step 2 – do you have a Caveatable interest?
The second step is to make sure that you have a “caveatable interest”.
A Caveat can help to preserve your interest pending a family law property settlement with your ex, but a Caveat is based on the law of trusts rather than family law.
Under the law of trusts a person who makes a financial or other contribution to the acquisition, maintenance or improvement of a property may acquire an “equitable” interest in the property itself (as opposed to a “legal” or “registered” claim). Where such a contribution has been made the person who made the contribution may be entitled to lodge a Caveat on the Certificate of Title.
For example, a relevant contribution may be:
- Financial by making mortgage repayments which reduce the principal amount owed on the mortgage; or
- Physical by applying your own efforts to improvements on the house or land, such as landscaping or installing a swimming pool which increases the value of the house or land.
Step 3 – lodging a Caveat
A Caveat can be lodged electronically which means this can occur relatively quickly after you have separated from your ex.
However, it is important to make sure that you obtain legal advice as to whether you have a caveatable interest before lodging a Caveat.
If you do not have a caveatable interest, the registered owner of the property can apply to remove your Caveat. If their application is successful, your Caveat will be removed and therefore there will be nothing remaining on the title to protect your interest.
If your Caveat is removed, the registered owner would be free to deal with the property as they wish.
Step 4 – finalising your family law property settlement
While the house or land you have an interest in is protected by your Caveat, you can commence negotiating a family law property settlement with your ex.
When you have finalised your family law property settlement in a way that is final and binding, your Caveat may need to be withdrawn, particularly if the house or land is going to be sold, transferred to you or retained by your ex.
Get in touch!
A family law dispute can quickly become a very stressful and emotional experience, particularly if you do not have a registered interest in a property. Our caring team of family and divorce lawyers at Tindall Gask Bentley can help you understand your legal entitlements and advise you about the best way to protect your interests.
Our professional team of commercial lawyers at Tindall Gask Bentley can help you lodge a Caveat and give you advice about the best way to protect your interest in a house or land while you finalise a family law property settlement.