What is ownership of real estate
in property in Family Law.

August 5, 2023
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Family Law has different aspect of it that are extremely complex. There is often a misunderstood overlap between legal and equitable interests in property in Family Law matters.

The experienced family lawyers at Meredith Lawyers discuss what ownership of real estate property is in the contact of Family Law,

When it comes to ownership of property it is very common for couples to buy or hold real estate property in the name of one partner only, either one or all the following reasons:

  1. Taxation and asset protection purposes; or
  2. Maintain separate financial interests; or  
  3. The property was brought into a relationship by one partner and remained in their sole name.

The above arrangements can complicate Family Law matters where a couple separates, and legal interests fail to reflect the other partner’s contributions to that property, and the relationship in general.

As a starting point, the legal owner of a property is the person/s or entity listed on the registered title to that property. However, it is relevant to recognise the equitable interests of the other party. Equitable interests refer to rights, other than strict legal ownership, arising from different types of trusts, for instance, where one party has made a significant contribution to the purchase or improvement of property but is not on title.

Equitable interests can be implied by the conduct of the parties through the common intention to share the expenses of the purchase and maintenance of a property and by the detrimental reliance on that intention via direct financial contributions.

In addition, usually, equitable interests may be asserted by way of an Application in the Supreme Court of the relevant State’s Equity division.

Following separation, property interests may be altered by way of an Application to the Federal Circuit and Family Court of Australia (‘FCFCOA’). The FCFCOA, is a federal court, operating under Federal legislation, the Family Law Act 1975. The FCFCOA can also deal with property interests of de facto couples under powers transferred from the states and territories. This makes the FCFCOA a jurisdiction with broader equitable powers available to it, for separated couples.

The family lawyers at Meredith lawyers often see the misconception around ownership of property where, following separation, a former spouse lodges a caveat on the title of real property to prevent that property being transferred, sold, mortgaged, or otherwise dealt with and without that caveat first being removed.

While State and Territory laws may differ within Australia, in New South Wales for example, a former spouse does not have a ‘caveat-able interest’ in real property based on equitable rights, at least not until a Court order is made. This often leads to relevant parties lodging improper caveats on the title to property. The risks to such an action include a lapsing notice being issued by the Registrar, and costs against the party who lodged the caveat.

The family lawyers at Meredith Lawyers can assist you to come up with relevant options to stop the sale of property where a party does not have a legal interest, such as filing   an application for injunctive relief in the FCFCOA seeking an order before filing the caveat to avoid a lapsing notice being issued by the registered proprietor of the land and being liable for potential costs.

If you are concerned about the premature sale of assets of your relationship by your former partner, seek early advice from our experienced family Lawyers at Meredith Lawyers.  

For more information on ownership of property a family law matter, or for advice after a separation, contact our experienced family lawyers at Meredith Lawyers on 1300 537 306 or admin@meredithlawyers.com.au.


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