Protecting property until settlement

Protecting property until settlement

It is important to keep track of all your property until your settlement is final. This can be difficult, particularly if assets are not in both names. Your ex-partner may try to hide, sell or give away your property to ‘get around’ an order of the court.

There are things you can do to protect your property, for example, through getting a ‘caveat’ or ‘injunction’.

Caveats

A caveat is a legal notice on your property at the Land Titles Office. The caveat tells people that you have an interest in that property. The property can’t be sold until the caveat is removed.

This procedure may not always be possible. You must show the registrar at the Land Titles Office that you have an interest in the land. Get legal advice.

Injunctions

An injunction is a court order that stops someone from doing certain things. It may be possible to get an injunction from the court to prevent assets being sold.

If you believe your ex-partner has or will sell, transfer or give away assets that should be part of your joint assets, you should take action immediately.

If assets have already been sold, it may be possible to get an order to ‘freeze’ (stop the use of) the sale money. Bank accounts and other cash resources may also be frozen in other circumstances.

Court orders about third parties

The courts can make orders and injunctions that affect third parties. A third party is anyone who is not part of a marriage and can include organisations.

For example, a court could make an order to:

  • stop a bank from selling a house
  • transfer responsibility for a debt from one partner to the other
  • transfer superannuation entitlements.

Legally, a third party must be included in an application and ‘served’ (given) all the documents relating to the case, even if you and your ex-partner agree to the order. The third party is then able to agree or disagree with the application and be involved in the case.

Bankruptcy

The family law courts can hear bankruptcy proceedings at the same time as a family law property or partner maintenance case. This applies whether a person is bankrupt at the start of a case or becomes bankrupt during it.

You must tell the court and each person involved in your family law or maintenance case if you are bankrupt or in a personal insolvency agreement.

If the court is making a decision about property or maintenance, the bankruptcy trustee can be included in the case. This happens when the court is satisfied that bankruptcy creditors (the people or companies that are owed money) will be affected by the property or maintenance orders.

The competing rights of the creditors and the non-bankrupt partner will be decided by the court.

This is a complicated area of the law and there are time limits on making a court application. Get legal advice before signing any agreement.

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