There may be some circumstances where you need to protect an item of property until you have sorted out your financial arrangements with your former spouse. This can be where:
- A house or other property is in the other party’s name and they might sell or mortgage it without your consent;
- A bank account or other investment is controlled by the other party;
- A family business is controlled by one party.
In those circumstances, there are ways you can protect your property. Remember, “everything is in the pot”. If one party wants to keep an item of property out of the asset pool, generally it can’t be done.
If you need to protect your interest in a house or land, you can apply at Landgate for a caveat to be placed on the property. You may be eligible to apply for a caveat if you have made financial or non-financial contributions to the property, or if the property is part of a de facto or matrimonial asset pool.
A caveat will only prevent the other party from selling the property without your consent; it is not proof of you having any interest in the property. A caveat can be removed if the owner of the property makes an application for its removal. If you object to a caveat being removed, you will have to file an objection. Objections can lead to proceedings in the Supreme Court of Western Australia.
To lodge a caveat, you must fill out a ‘Form C1’. You can download a copy of the Form here. You will need a copy of the Certificate of Title for the property. If you do not have a copy of the Certificate available, contact Landgate on 9273 7373.
You may need to see a lawyer to help you fill out the caveat form. You must file your caveat at any of Landgate’s lodgement offices or by post. A caveat lodgement fee will apply. For information on lodgement locations and applicable fees, contact Landgate on 9273 7373.
For a complete guide on completing Landgate Caveats, download their How-To-Guide here. If you require any assistance in drafting or lodging a Caveat, contact Landgate directly or seek legal advice.
If you believe that your former partner will dispose of any item of property without your consent, contrary to an agreement you have already made, or before a proper property separation has occurred, you can seek an injunction in the Family Court of Western Australia. An injunction is an Order of the Court that stops or prevents a person from doing something. In this case, you will be seeking an injunction to prevent the other party from disposing of an asset in the de facto or matrimonial asset pool.
You make an application for an Injunction with a Form 1 Initiating Application in the Family Court of Western Australia. You will have to seek Interim Orders as well as Final Orders if you wish for the Injunction to be made urgently.
For steps on completing an Initiating Application, follow our Procedure link above. You can also contact the Family Court of Western Australia on 9224 8222. It may be advisable to see a lawyer for assistance in seeking an injunction.
Financial Abuse or Control
A form of family violence is to exert control over a person’s finances or to purposefully damage an item of property belonging to, or in the presence of, a family member.
If your former partner is trying to control you by threatening to damage or dispose of property that you own or have an interest in, then you may be a victim of family violence. Your former partner’s behaviour may also constitute criminal conduct and you may wish to consider contacting the police.
For more information about financial control or abuse, follow our Family Violence link above.