Caveats in Family Law: proceed with caution

Caveats may be and are often utilised in a Family Law context to protect a party’s interest in a property until a final family law property settlement is reached when they are not on the Certificate of Title.

Prior to reading further in this article, if you would like more information on Caveats, how they work and why they might be helpful in your Family Law matter, please read our previous article ‘What is a caveat and how may it be used to protect real estate in family law?’

In recent history there have been a number of cases when Caveats have been struck down by the Family Court due to being lodged improperly by a party.

When lodging a Caveat over a property, it is paramount that the person lodging it (the Caveator) understands that he/she must be able to prove that they have a specific interest in that specific piece of property. It would not be sufficient to establish that the caveator has previously being in a relationship, whether a marriage or a de facto relationship, with the person who owns the property, and that there are family law property proceedings on foot.

You must be able to provide specific evidence as to your interest, such as through financial investment in the property (for example you having put in money for the purchase but ultimately for varying reasons the home was placed in only one person’s name) or you have made contribution to the property though improvements to it over the course of the relationship.

If someone lodges a Caveat on a property improperly and without merit and, as a result, the person who owns the property suffers damages or loss, the person who lodged the Caveat is liable to pay compensation for those damages.

The message from the Courts is clear: before you lodge a Caveat, make sure you have a valid and specific reason for having an interest in the property!

If you have any questions about caveats, have had a caveat lodged over your property or wish to lodge a caveat yourself, you can speak to one of our experienced solicitors.

e: cturini@elringtons.com.au | p: +61 2 62061300