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WA Can Property Law Protect My Properties from Husband's Ex?

Discussion in 'Property Law Forum' started by Cimara, 1 June 2016.

  1. Cimara

    Cimara Active Member

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    Hi,

    I am married, and my husband has an ex-partner who is constantly stalking our financials (through friends) and she also has placed caveats on my husband's properties under the guise of child maintenance.

    I don't want to let the above situation stop me from investing in properties or buying a dream home for myself and my family. Question is, how do I purchase a property that can pretty much guarantee my partner's ex won't have any caveatable interest in it? What are my options?

    I've been told by our family lawyers that my husband's ex can place a caveat on any property. Even if the property is just under my name. I would like to invest in a property that one day can be passed on to my (and my husband's) son. I do not want to see this property be jeopardised and be brought into the ongoing dispute of child maintenance between my husband and his ex.

    His child maintenance case has been in court on and off for 3 years now, and judging from the past, she will continuously apply for a variation of amounts for maintenance as long as she has an excuse. She has applied for variation as much as 12 times, and the child is only 5 years old.

    Overtime my husband changed jobs, drives a different car, etc. So I'm really worried about purchasing a property. But surely property law can protect me? I'm not involved in this other than being married.

    Thanks in advance for any help.
     
  2. Rod

    Rod Well-Known Member

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    Just because the ex has obtained caveats, it doesn't mean they are legal.

    Has your husband been through and finalised property settlement? He can apply to the supreme court to have caveats removed and have his ex-charged for the privilege if the caveat was improperly obtained.

    To have a valid caveat, the person applying must have a 'caveatable interest' in the property. An unsecured debt to his ex doesn't qualify as a legitimate caveatable interest. I'm not sure if arrears in child support or child maintenance in general can be considered as a caveatable interest. Need a family lawyer to answer this question. I'd be asking your family lawyers again as to why they believe the caveats should remain.

    If child maintenance is not considered a valid reason for placing a caveat on property I'd be writing to the ex telling her to withdraw them or face court action. I'd also be mentioning that if successful, then costs may be awarded against her.

    Sorry I can't fully answer your questions, I don't have enough knowledge. Hopefully one of the family law people here will answer your post.
     
  3. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Cimara

    Rod is 100% correct is stating that just because the Caveats have been lodged, it does not mean they are legal".

    You need to have a lawyer review the Caveat, and provide advice regarding whether or not, it is based on grounds sufficient to justify a caveatable interest.

    A right to be paid Child Support is not, in of itself, a Caveatable interest in a Property.

    If not, then correspondence needs to be sent demanding the removal of the Caveat, and noting that if you are forced to follow the procedure to have the Caveat removed, you will be seeking compensation, and reimbursement of legal costs - as suggested by Rod.


    "The right to register a Caveat

    In order to register a caveat, a person must first establish a caveatable interest.

    In many family law matters, a former spouse or de-facto partner is usually able to demonstrate an interest in the property as a result of their 'financial and non-financial contributions' to the 'acquisition, maintenance and improvement' of the property during the course of the marriage or de-facto relationship."​

    If you proceed to purchase a new property, the ex, has nothing to do with the property, and would not be able to establish a caveatable interest in the property.

    Therefore, I do not understand the advice provided by your Family Lawyers, regarding caveats being able to be lodged on any property, and why they think the current caveats are able to remain.

    "Risk in Registering a Caveat

    There are risks of registering a caveat without a caveatable interest.

    If the person who lodges the caveat is found to have no caveatable interest, and the owner of the land suffers financial loss as a consequence of the caveat, the owner of the land has a legal right to recover those losses directly from the person who lodged the caveat."​

    Kind regards,
     

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