Protecting your rights in real property
Until your family law matters are finalised, it is important to protect and preserve your interest in real property; particularly if you predict that the matter will not be resolved quickly.
If you own real property with your former partner and you are both on title, the real property can be held as ‘joint tenants’ or ‘tenants in common’.
Joint tenants share equally in the entire ownership of the property, and each party has equal, undivided rights to keep or dispose of the property.
Joint tenancy creates, what is known as, the right of survivorship. Effectively, in the event of your death, your entitlement will automatically pass to your former partner (despite what your current will might say). Similarly, should your former partner predecease you, his/her share will automatically pass to you.
Either party has the capacity, at any time, to sever the joint tenancy that exists. Severance of a joint tenancy can be done unilaterally without your former partner’s consent.
Once severed, the property will be held as tenants in common.
Tenants in Common
Tenants in common beneficially own the property, and any income derived from that property is distributed in the same proportion as the legal title held. In those circumstances, if either party passes away, the proportion of that party’s rights in the matrimonial home (whatever that may be), will be passed to the beneficiaries named in their will.
If you require further advice regarding joint tenancy or you are uncertain about whether you hold your property as joint tenants, please let us know and we will refer you to a member of the Ramsden Lawyers’ property team.
Even if you are not on title of the property, you might still have an interest in the property pursuant to family law. That interest will need to be preserved throughout the family law negotiations and/or proceedings.
If you are not on title of any real property and your former partner is the sole titleholder, you might consider lodging a caveat over your legal or equitable interest in the property. The intention being that the caveat will operate to preserve the property pool until the court has made a determination as to your rights in the property.
So what is a caveat?
A caveat is a formal document which is lodged at the Titles Office that puts the Registrar on notice to prohibit the registration of any instrument (for example, a form which transfers the property, or processes a mortgage over the property) until the caveat is withdrawn, removed, lapsed or cancelled.
Once a caveat is lodged, your former partner cannot adversely deal with the property. For example:
- He/she cannot sell the property at a nominal value to a close family member or friend to buy back after the proceedings have been finalised;
- He/she cannot sell the property to a third party to attempt to defeat your claim; and
- He/she cannot place a further encumbrance over the property to reduce its equity (and the property pool as a whole).
- Once you have lodged a caveat, you must be prepared to commence court proceedings.
The registered owner of the property will be given notice that the caveat exists, and you might be asked to commence court proceedings within fourteen (14) days to establish that you have an interest in the property. If you do not, the caveat will automatically lapse and you will not be able to lodge another caveat under the same grounds.
Importantly, if you lodge a caveat without reasonable cause, and your former partner suffers a loss because of that, you will be required to compensate them and anyone else who suffers loss or damage as a result.
We recommend seeking legal advice prior to lodging a caveat. If you require further information, please let us know and we will refer you to a member of the Ramsden Lawyers’ property team.
For more information, also see: asset protection [link].