Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au

Protecting your right to property

What you can do if you are worried your ex-partner will sell, transfer or hide assets.

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Sometimes property is sold, transferred or hidden before a property settlement is completed. There are legal processes that can stop this from happening.

This information is for all people going through a separation including people who were married or in a de facto relationship.

These issues can be overwhelming and stressful. Get legal advice if you can. For information about legal advice and other support services, go to Other support for home and property.

Property settlements

If you are separating, it is important to protect your rights to property until your property settlement is final.

You are entitled to a share of property even if it isn’t in your name. Your ex-partner may also be entitled to a share of property that is in your name.

Property includes assets (things you own) and debts (things you owe money on).

Property can include:

  • real estate
  • money
  • shares and investments
  • superannuation
  • household items, including furniture or jewellery
  • debts, such as mortgages, personal loans, credit cards.

You might be worried that your ex-partner will sell, transfer or hide their property before a settlement is complete. There are legal processes that can stop this from happening.

You may be able to:

  • place a caveat (formal notice) on property
  • ask the court for an injunction (court order)
  • stop money from being transferred or spent.

During a property settlement, you and your ex-partner are legally required to share financial details. This can include bank statements, loan details and property valuations.

Hiding assets during a property settlement is considered financial abuse. This is a type of family violence.

If you or someone you know is experiencing family violence, go to Family violence support services for help.

Caveats

A caveat tells people that you may have a legal right to property. It is a formal notice placed on property (real estate or land) through Land Services Victoria.

A caveat means that you will be notified if your ex-partner wants to sell the property.

There is a fee to apply for a caveat. To learn more about how to apply, go to Fees, guides and forms on the Land Services Victoria website.

We recommend you get legal advice before applying for a caveat.

Injunctions

An injunction is a court order that stops someone from doing certain things. For example, the court may make an injunction to stop property or assets being sold, transferred or given away.

If you think your ex-partner may sell or transfer property that should be included in your settlement, get legal advice quickly.

If property has already been sold, the court may be able to stop the sale money from being used. In some situations, bank accounts and other money can also be ‘frozen’ (stop the use of).

The court can also stop someone from increasing debts.

Property issues are decided in the Federal Circuit and Family Court of Australia. To learn more about how to apply, go to Financial or property: My application is urgent on the court website.

Injunctions involving other people or organisations

Sometimes injunctions affect other people or organisations, not just you and your ex-partner. These are called ‘third parties’.

A third party could include:

  • a bank
  • a superannuation fund
  • another person connected to the property or debt.

For example, the court may make an order to:

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

If an injunction affects a third party, they usually need to be included in the property settlement case.

They must receive copies of the court documents. This is called being ‘served’.

The third party can agree or disagree with the property settlement application and may take part in the case.

How bankruptcy impacts property settlements

The Federal Circuit and Family Court of Australia can deal with bankruptcy issues at the same time as a property settlement or spousal maintenance case.

This applies if:

  • a person is already bankrupt when the case starts
  • they become bankrupt during the case.

You must tell the court and everyone involved in the case if:

  • you are bankrupt
  • you have entered into a personal insolvency agreement.

If bankruptcy is involved in a property settlement, the bankruptcy trustee must also be included in the case.

The court may also consider the interests of people or companies who are owed money.

Bankruptcy and family law matters can be complicated. There are also time limits for some court applications. You should get legal advice.

To learn more, go to Bankruptcy on the Federal Circuit and Family Court’s website.

Explore our publications and resources

Support from other organisations

  • Family Relationships Online provides information and help with relationship and separation issues, including money and property. Visit their website or call their advice line on 1800 050 321.
  • The Australian Government’s Moneysmart website have a checklist to help you work through your finances after a break-up.
  • National Debt Helpline provides free advice and referrals to financial counsellors.
  • 1800RESPECT offers support, counselling and information about family violence. Phone 1800 737 732 or text 0458 737 732 (24 hours).
  • WIRE provides information and support about relationships, money and housing for women, non-binary and gender-diverse people in Victoria. Their booklet Separation and property has information on property division and financial abuse.
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