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How to Use a Caveat to Protect Your Property in Divorce

7th September 2021

You have the perfect home in Queensland. It's next to amazing schools, perfect beaches, and the economy and housing market in the state is stable. It is the first home you bought for yourself.

Now, you are embroiled in a property dispute with your ex. Your neighbours look upon you with pity. You stand to lose your home.

Do you take the hit to your net worth in the case of separation?

Of course not!

Read on to find out about using a caveat on property in divorce situations.

What Is a Caveat On Property in Divorce

The word Caveat has origins in Latin. The phrase "caveat emptor" means "let the buyer beware" while "caveat venditor" means "let the seller beware".

Launching a caveat on a property indicates you have an interest in it. It protects your property from those looking to sell or transfer it for a period.

Caveats are launched for two main reasons.

  1. To protect priority interest after entering into a contract with a seller
  2. To protect interest in case of a property dispute

If you wish to protect your home in a divorce, definitely consider launching a caveat on the property.

If you want to read in detail about legislation around caveats in Queensland, read this or ask your legal counsel to explain to you.

How to Lodge a Caveat in Queensland

You can launch a caveat on your property if you ever feel like it is at risk. Simply file a caveat with the Registrar of Titles. You will need to file a Form 11.

It is important that the courts recognise the claimed interest as being capable of sustaining a caveat. This is called having a "caveatable interest".

This means you must have a direct interest in the property itself. For example, you would not be able to launch a caveat if someone owed you money in a context completely unrelated to their property.

Caution

Be extremely careful that you do have a caveatable interest. Typically, having paid for a property will count as one.

If you do not, you could be subject to fines. You may be ordered by the court to pay

  1. The amount the other party would need to pay to apply to remove the caveat
  2. Cost of damages

Because these costs can be significant, it is advised that you find a property litigation lawyer to tell you whether you have caveatable interest.

Once you meet with your lawyer over your property and your unique situation, you can decide together whether filing a caveat is the best way forward.

What the Caveat Will Do

After you lodge the caveat, Queensland titles will check whether it meets legislative and administrative requirements. If it does, it will be registered.

Keep in mind that just because the caveat is registered, it is not proven that the caveatable interest really exists. Existence and viability will have to be determined by the court.

The granted caveat will give you three months of protection on your property. During this time, you and your co-owner will work on legal proceedings together.

As this process is complex, it is highly recommended to seek legal counsel in family law or divorce law before proceeding. A divorce lawyer can organise your case for you and remind you of deadlines. 

Costs

Note that there are costs associated with filing a caveat. You can calculate the lodging costs as well. Simply use this online calculator.

The fees can sometimes be revised. You can check out the most recent alerts as well. Click here to view the most recent revision.

Note that there can be additional costs associated with lodging. If you do seek legal advice, there may be significant fixed costs as well.

For example, a lawyer may have fixed fees associated with family law.

Can a Caveat be Lifted

If the landowner has not consented to the lodgment of the caveat, then it is merely a temporary measure.

If you do not "secure" your caveat, then it may automatically lapse in three months. If you wish to secure the caveat, you must undertake further legal options following lodging. This is best done following legal counsel.

This is not ideal for you, because if the caveat lapses, the other party may do with the property what they wish.

You should take steps, then, to maintain interest in the property.

The progression timeline of court proceedings depends on the "Caveatee", or the property owner. They can delay or force you to bring court proceedings sooner.

The Caveatee can also apply to the Supreme Court of Queensland for an order to remove the caveat. They can do this without giving you fourteen days' notice.

If they choose to do this, the burden will be on you to prove that the caveat can be maintained.

Because the three-month period following lodgment is so critical, it is again advised that divorcees seek legal counsel.

If an order of removal is not issued, the caveat will remain in force.

A caveat can be withdrawn, removed, lapsed, or cancelled. After a caveat lapses, the Registrar of Titles can remove or cancel the caveat from the title.

How Much Does it Cost to Remove

Generally, if the Court orders the caveat removed, the costs will favour the Caveatee who applied for removal. This cost will be determined by the Court.

Key Takeaways

Hopefully, you learned from this guide exactly how to lodge a caveat on property in a divorce. Again, the process is complex and the one who lodges may incur significant costs. Therefore, it is in your best interest to seek legal advice before launching one to protect your interest.

Schedule a consultation today to protect your home in case of a separation.

Please note the contents of this post is information only and not legal advice. 
If you require legal advice it is best to contact one of our lawyers who can review your particular circumstances and then provide tailored advice according to your needs.


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