When parties separate, it is important to make sure that assets are protected before a family law property settlement is formalised. One way that matrimonial assets can be protected is through the lodgment of a caveat.

What is a caveat?

A caveat is a note that is recorded on the title of a property that protects any interest that the maker of the caveat may have on the property. This notice can be used as a way to delay a property transaction. If your ex-partner is the registered owner, a caveat can prevent them from adversely dealing with the property such as by selling, transferring, mortgaging or encumbering it until the court has determined whether you have an interest in the property. A person who lodges a caveat is known as the ‘caveator’.

When should a caveat be lodged? 

A caveat may be lodged if a party has a caveatable interest in the property. This may occur if both parties to a relationship have an interest in the property but there is only one party’s name on the title of the property. This interest may be present if, for example, both parties contributed to paying the mortgage or have contributed to the property through other means throughout the relationship. This can include non-financial means such as property maintenance. If the person making these contributions does not have their name registered on the title of the property, then it is likely that they will not gain any benefit from that property, if it were to be sold by the proprietor.

How is a caveat lodged? 

A caveat is lodged by way of a caveat form, which can be completed for electronic lodgment by a solicitor or conveyancer, or in hard copy with NSW Land Registry Services. Basic requirements of the caveat include the name and address of the person lodging the caveat, the name and address of the person who owns the property and the interest claimed by the person lodging the caveat. It is important to complete the caveat correctly the first time as once it is lodged as you cannot lodge another caveat on the same grounds unless you are granted leave by the court.

What happens after a caveat has been lodged?

Once a caveat is lodged NSW Land Registry Services will then examine the documentation, and if an interest is adequately made out, they will record the caveat against the title of the property. They will then serve notice to both the caveator and the registered proprietor of the property. Subsequently, the registered proprietor will be entitled to serve a lapsing notice on the caveator, requiring them to commence court proceedings immediately in order to establish their interest to that property. Failing to attend to this within fourteen (14) days will result in the caveat lapsing.

How do you remove a caveat?

A caveat can be removed by bringing an application to the Registrar of Titles. This application must be in writing, and have a supporting certificate signed by a legal practitioner. This application must also include a statement confirming that the caveator does not own the property and has no claim to it. If proceedings are not commenced by the caveator to protect their caveat, then the caveat will lapse after three months as a result of the application lodged with the Registrar. Once the caveat has lapsed the owner of the property can then lodge a form to formally remove the caveat.

Family law matters can get very complex. Get Legal Advice.

When drafting a caveat, it is important all proper protocols are followed to ensure that the caveat is permitted by the relevant authority.

Our experienced family lawyers are ready to assist you with your matter and take the stress out of your divorce or other family law matters. If you need any assistance please don’t hesitate to contact Etheringtons Family Lawyers in North Sydney via this form or on 02 9963 9800.