Any party in a relationship who has a legal interest (e.g. your name is on the Certificate of Title for the property) or equitable interest (e.g. your name is not on the Certificate of Title, but you have made contributions towards the property) in land or and/or a house may lodge a caveat.
A caveat is shown on the Certificate of Title for the property. Depending on the type of caveat lodged, this may delay or prevent any dealings with the property
Caveats are often used where one party is worried that their former partner will sell or otherwise deal with the property against their interests. In family law, caveats are generally used where one party legally owns the property, but the other has an interest in it by virtue of contributions they made to the mortgage, for example.
Caveats can be complex things. Whilst lodging a caveat may seem like the obvious thing to do in a separation- caution should be exercised and it is best that you seek legal advice before lodgement. If you are concerned about your former partner dealing with your property against your interests or would like some general advice about caveats in the family law system, please call 6557 5888 to arrange an appointment with one of our solicitors.
In the 13 December 2018 decision in Commissioner of Taxation v Tomaras  HCA 62 the High Court of Australia held that the Family Court has the power to order the Commissioner for Taxation to substitute one party to a marriage for the other in relation to a debt owed to Commonwealth for income tax.
However, this is not an order the Family court is likely to make frequently.
A few things worth knowing about the decision
- Whilst the Family Court has the power to make a substitution order pursuant to s 90AE(1) of the Family Law Act 1975 (Cth) the power should not be exercised unless specific conditions are met.
- To exercise the power the Family Court must be satisfied that:
- The making of the order is reasonably appropriate and adapted, to effect a division of property between the parties to the marriage;
- It is not foreseeable at the time the order is made that to make the order would result in the result in the debt not being paid in full; and
- In all the circumstances it is just and equitable (fair) to make the order.
- Whilst this represents a significant shift, the conditions outlined in the decision are onerous.
- The decision is not likely to be a mechanism for non-payment of taxation debt.
Kavanagh Family Lawyers can assist with drafting consent orders once agreement about property settlement has been reached. We can then help you apply to transfer any land from joint names. Any stamp duty payable on the transfer is assessed at a nominal rate rather than at market value. These Transfers of Land are lodged with the Department of Land Administration and stamp duty is assessed by the Department of State Revenue.
The State Revenue Department will assess the stamp duty at nominal rates on both the transfer and the court order, where the parties have a sealed Family Court order specifying a property transfer from the names of both parties to one party.
Property Settlement after Separation: Next Step
- If we may be of assistance, call Kavanagh Lawyers on (08) 6557 5888.