Introduction
Q1: Does being married automatically give me the right to lodge a caveat on my spouse's property?
A: No. Marriage or a de facto relationship does not create a caveatable interest. You need a specific legal or equitable interest in the property to support a caveat. Reference: Pethrick & Folmar [2022] FedCFamC1F 905
Q2: What happens if my spouse sells the property and I never lodged a caveat?
A: You could lose everything. In one case, a husband refinanced a property for over $4 million despite a court injunction, withdrew $1.4 million in cash, and spent it all. The wife and five children were left with nothing to divide. Reference: Wasem & Nasser (No 5) [2024] FedCFamC2F 1063
Q3: Can a court give me permission to lodge a caveat even if I don't have a caveatable interest?
A: Not by simply granting permission. But a court can create a caveatable interest for you, for example by imposing an equitable charge on the property to secure maintenance payments. Reference: Lin & Ruan [2021] FamCAFC 90
What is a caveat on property under Australian law?
A caveat is a notice registered on a property title that blocks the owner from selling, mortgaging, or otherwise dealing with the property without the caveator's consent. Think of it as a legal freeze on the property.
Under state land titles legislation, anyone claiming an estate or interest in land can lodge a caveat with the Registrar of Titles. The key word is interest. You need a recognised legal or equitable interest in the property. A hope, expectation, or pending court application is not enough.
In family law, the relevant legislation is the Family Law Act 1975 (Cth). The court has power under section 79 to alter property interests and under section 114 to grant injunctions. But these powers don't automatically give either spouse a caveatable interest.
The test for maintaining a caveat was set out in Auricchio & Auricchio and Ors (No. 2) [2014] FamCA 240. The person who lodged the caveat must show two things:
- There is a serious question to be tried, meaning a sufficient likelihood of success to justify preserving the status quo.
- The balance of convenience favours keeping the caveat on the title.
"As ss 79 and 90SM do not give a party to a marriage or de facto relationship any legal or equitable right to property before an order is made, a right to apply for an alteration of property interests is not a caveatable interest in real property..."
Core Point: A caveat protects an existing interest in property. Filing a family law application does not create that interest. You need something more, like a trust, an equitable charge, or a court order that specifically creates an interest.
Why doesn't being married automatically give you the right to lodge a caveat?
The Family Law Act gives the court power to divide property. But that power is discretionary. Until a court actually makes an order in your favour, you don't have any legal or equitable interest in your spouse's property. A pending application is just that: pending.
This surprises many people. You might have contributed to the mortgage for years. You might have raised the children while your spouse built a business. But contributions under the Family Law Act are a factor the court considers when exercising its discretion. They don't automatically create a proprietary interest.
"It is trite that contributions do not, in and of themselves, give rise, without more, to an interest in property."
If you lodge a caveat without proper grounds, three things can happen:
- The court orders removal at your expense. In Pethrick & Folmar [2022] FedCFamC1F 905, the de facto wife was ordered to remove her caveats and pay for it herself.
- You may face a costs order. The other party's legal costs for removing your caveat could be added to your bill.
- You lose credibility with the court. Lodging a caveat you can't legally support signals to the court that you are acting unreasonably.
An 83-year-old wife lodged a caveat on a property her 90-year-old husband had owned for 30 years before their marriage. She claimed a constructive trust, arguing she had stayed in the marriage because her husband promised the property to her in his will. He later changed the will.
The husband said the caveat was causing him severe distress and worsening his health. He applied for a mandatory injunction to remove it.
Outcome: The court ordered the caveat removed. A promise in a will, which can be changed at any time while the person is alive, does not create a proprietary interest in the property. The wife failed to show a serious question to be tried.
Key Point: The gap between what feels fair and what constitutes a caveatable interest is real. Contributions, promises, and years of marriage do not automatically translate into a legal interest in your spouse's property.
How should you handle caveats in a family law property dispute?
Your spouse has lodged a caveat on your property
If your spouse has lodged a caveat and you want it removed, you apply to the court for a mandatory injunction under section 114 of the Family Law Act.
The burden is on the caveator. Your spouse must prove two things:
- A serious question to be tried with sufficient likelihood of success.
- The balance of convenience favours keeping the caveat.
If they can't meet this test, the court will order removal.
A de facto wife lodged caveats on two Victorian properties owned by her partner. One property was in his name only. The other was co-owned with his brother. Both had been owned for over a decade before the relationship began. The wife claimed an implied, resulting, or constructive trust and wanted a just and equitable division. The husband, who was in jail, needed to sell the properties to pay debts and fund his legal fees.
Outcome: The court ordered the wife to remove both caveats at her own expense. Claiming a trust without evidence to support it is not enough. The court did, however, order the sale proceeds held in trust for 14 days to give the wife time to make a proper application for property settlement.
The Pethrick decision shows that even when a caveat is removed, the court can use injunctions to protect sale proceeds for a short period. This gives you a safety net while you pursue a property settlement through proper channels.
Caveats as a practical tool: why they still matter
Here is where theory and practice diverge. Legally, a spouse generally does not have an automatic right to lodge a caveat. But in practice, lodging a caveat remains one of the most cost-effective and accessible legal tools available.
A caveat is cheap to lodge, fast to register, and immediately effective. The moment it appears on the title, the property cannot be sold or refinanced without dealing with the caveator. Even if the caveat is eventually removed, it buys time. And in family law, time is often what you need most.
The case of Wasem & Nasser (No 5) [2024] FedCFamC2F 1063 shows exactly why this matters.
After a nine-year marriage with five children, the husband began developing an investment property. The court issued injunctions in 2021 stopping him from borrowing more than $160,000 against the property. The husband ignored the injunctions entirely. He refinanced for over $4.1 million, received approximately $1.4 million in cash, withdrew the money, and told the court it had been spent and was unavailable.
Outcome: The court found the wife's homemaker contributions over nine years with five children would have entitled her to 60% of the asset pool. But there was no property left to divide. The wife and children were left with nothing. Judge Street described it as an awful outcome with no effective remedy.
"It is a most unsatisfactory position that the state of the law in relation to caveatable interest is one that it does not recognise the potential property interests of a de facto or married person... That is an unsatisfactory feature that cries out for legislative reform to prevent the enormous injustice and unfairness that occurs where... a transaction proceeds by a fraudulent party inconsistent with existing injunctions that defeat that party's interests."
| Comparison | Pethrick & Folmar [2022] | Wasem & Nasser (No 5) [2024] |
|---|---|---|
| Situation | De facto wife lodged caveat on partner's properties | Wife relied on court injunction only |
| Caveat lodged? | Yes, later removed by court | No caveat lodged |
| Court protection used | Sale proceeds held in trust for 14 days | Injunction breached, no caveat to block refinancing |
| Property preserved? | Yes, proceeds preserved temporarily | No, $1.4 million withdrawn in cash |
| Outcome for spouse | Given time to make proper application | Wife and five children left with nothing |
Key: In Pethrick, even a caveat that was eventually removed forced the process through the court, preserving the proceeds. In Wasem, the absence of a caveat meant the husband could refinance behind the wife's back. A caveat on the title would have alerted the lender and likely blocked the transaction.
The practical takeaway: if you have any arguable basis for a caveatable interest, lodge the caveat. If the other side challenges it, you negotiate from a position where the property is still there. If you lose, the court may still protect the proceeds through injunctions. But if you do nothing and your spouse sells or refinances, the money may be gone before you can act.
If you are worried about your spouse transferring or hiding assets, see What to Do When a Spouse Hides Assets in Divorce. For situations where delays in selling property have caused financial loss, see Ex Delaying Property Sale? How to Recover Your Losses. If you are wondering whether the court can decline to split property entirely, see Can the Court Refuse to Split Property in an Australian Divorce?.
Summary
Marriage does not give you an automatic right to caveat your spouse's property. You need a recognised legal or equitable interest, not just a pending family law application.
Lodge a caveat without proper grounds and the court will order you to remove it at your own cost. You may also face adverse costs orders and damage your credibility.
Despite the legal hurdles, caveats are one of the most practical tools in family law. They are cheap, fast, and immediately effective at freezing property. Even if eventually removed, they force the process through the court and buy you time.
If you can't lodge a caveat, apply for an injunction under section 114. But be aware that injunctions can be breached, as the Wasem case tragically showed.
The law in this area is widely criticised and may change. Multiple judges have called for reform to recognise spousal property interests as caveatable during family law proceedings.
