How to protect your property
When you separate, to protect your property, you should keep track of all assets and debts until financial arrangements are complete. You may want to take photos or keep other records.
If you think your ex-partner will sell, transfer, give away or has already got rid of property you may have a right to, then it is important to see a solicitor and get legal advice immediately.
You can protect your property by getting a Court Order (injunction) to stop property being sold or money being spent.
If you are a defacto (including same-sex) couple who separated after 1 March 2009, you can apply for a property settlement and/or spousal maintenance under the Family Law Act (1975). If you were not married and you separated before this date, get legal advice.
It may be possible to have a ‘caveat’ placed on a property title. This is a warning to other people that you have an interest in the property. The rules for caveats are different in each state and territory, so get legal advice.
If you think your ex-partner will sell, transfer, give away or has already got rid of property you may have a right to, take action immediately. You may be able to get a Court Order (injunction) to stop property being sold or money being spent.
If your property was sold, you may be able to get an Order ‘freezing’ the sale money. Freezing means the sale money cannot be withdrawn or used by anyone. Bank accounts and other cash resources may also be frozen in other situations.
Court Orders about third parties
The Courts can make Orders and injunctions that affect third parties. A third party is anyone who is not part of a marriage and can include organisations. For example, a Court could make an Order to stop a bank from selling a house or transfer responsibility for a debt from one partner to the other. The third party must have been told about the application before this can happen.
The Family Law Rules identify a third party must be included in an application and served (given) all the documents relating to the case—even when the other two parties agree to the Orders. The third party can then agree or disagree with the application and be involved in the case.
The Family Law Courts can hear bankruptcy proceedings at the same time as a family law property or spousal maintenance case. This applies whether a person is bankrupt at the start or becomes bankrupt during the case.
You must tell the Court and each person involved in your family law or spousal maintenance property case if you are bankrupt or in a personal insolvency agreement (or if either of these things happens during your case).
If property or spousal maintenance is being decided and there is bankruptcy, the Court will also include the bankruptcy trustee in the case. This happens when the Court is satisfied bankruptcy creditors will be affected by property or spousal maintenance Orders being made. The competing rights of the creditors and the non-bankrupt spouse will be decided by the Court.
This is a complex area of law, so it is very important to get legal advice before signing any agreements, or if you are in any of these situations.
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