LawTalk Blog

When caveats in Family Law are inappropriate

When are caveats not appropriate in Family Law?

As a family lawyer we see caveats being lodged over peoples’ properties after a separation on almost a daily basis.

It appears to be the general practice to automatically lodge a caveat over the other spouse’s properties following a separation. It appears that this practice is done automatically without giving thought to whether or not it is appropriate to lodge a caveat in those circumstances.

"This fact was settled more than half a century ago when the courts found a "deserted wife" does not have an interest in the matrimonial home registered in the name of the husband simply by virtue of being married."

Some people appear to have the misapprehension that just because the parties were in either a de facto relationship or marriage, this automatically gives rise to an interest in the other party's land. This is not the case.

This fact was settled more than half a century ago when the courts found a "deserted wife" does not have an interest in the matrimonial home registered in the name of the husband simply by virtue of being married; Maio v Piro [1956] SASR 233. It is therefore odd that the practice continues to this day.

In order to lodge a caveat the person needs to have an interest in the land. In Family Law matters that would generally be by way of what is referred to as a constructive trust.

The constructive trust gives rise to the interest in the land and is created by the other party making contributions to the acquisition, maintenance and improvement of the land.  For example when one party purchases a property in their sole name and contributes the deposit but thereafter is in a relationship and the parties pool their resources, put their respective incomes into a joint account and use money to pay for household expenses and in particular pay mortgage instalments, that can give rise to an interest in the land; Baumgartener v Baumgartener (1987) 164CLR 137.

Subsequent to Baumgartener, the law further developed so that non-financial contributions are also given regard. It was also not necessary for the parties to pool their resources into a joint bank account to pay the mortgage. They considered that the domestic duties and responsibilities of one party could be seen to assist the other party by allowing them to pursue their business or employment activities and work directly for a financial reward; Parij v Parij (1998) 72 SASR 153.

As you might imagine the question of whether someone has an interest in land is a complicated legal issue and one where experienced legal advice should be sought. Our view is that when caveats are lodged without proper grounds, then an application to withdraw that caveat should be filed at the Land Titles Office immediately.  Unless the caveator can prove their interest in the land in either the District Court or Supreme Court it will be removed after 28 days.


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Get in touch with today's blog writer:
Ryan Thomas

Partner in Family Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.


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