Separating but the Family Home is not in your Name? Read this.
30 years ago the “Great Australian Dream” was home ownership, with a hills hoist on a quarter acre block, 2 car garage and 3.5 kids
That dream has had to change for most people perhaps to a small apartment close to the train line. What type of property we’ll be working towards in another 30 years is yet to be seen (sleeping pod’s akin to in a Tokyo airport??), but what will remain is that property ownership will always be there.
Real estate is a major past time for the Australian culture and this flows through into Family Law as much as matters of parenting, when relationships do break down. It is after all the largest store of wealth and investment 9 out of 10 families will ever own.
During separation, it may be the case that only one party is on Title, either by virtue that the property was mortgaged in one name, or that the relationship was a de facto one which commenced after the property was purchased, but it subsequently became a family home.
When faced with this issue of title, what inexperienced solicitors in Family Law have been known do is attempt to slap a Caveat on the property to try and protect their clients interest under the Family Law Act.
A grey area of the law, which in late September has been dealt a further blow from the Supreme Court that a caveat is not an appropriate course of action in property disputes between feuding parties in the matter of Tomcsanyi v National Australia Bank 2019 WASC 347.
Hon Justice Kenneth J Martin ruled that “the law seems to me to have been settled for some time as regards caveats supposedly justified by reference to possible future outcomes in family court litigation.
That law is that spouses do not hold property rights against each other's real property merely by reason of the Family Law Act 1975 (Cth), in particular s 79, unless and until an order is made altering the rights they have as determined by the principles of common law and equity.”
As experts is Family Law, particularly complex property matters, Lagom Family Law can guide our clients on the best options to protect their interests, like considering what is known as an urgent Application in the Family Law Courts to seek an injunction (restraining the other party from dealing with or selling certain things like property), until a full assessment and agreement on the value has been ascertained.
Divorce and separation can be one of the most stressful times in people’s lives, but it is paramount that all the options be considered without delay to ensure the best possible outcome. That’s why Lagom Family Law offer a free initial consultation to chat about your matter and be informed before acting on advice.
Lagom is Swedish and means not too little, not too much, just right. This is our philosophy of practice as we aim to provide tailored advice specific for your individual needs - that’s just right for you!
Lagom Family Law is a boutique legal practice lead by Principal Lichee Hogland who strives to achieve the best possible outcome for her clients whilst being approachable and respectful.