Protecting proeprty, household items and personal belongings after separation

It can be difficult to keep track of all your joint property until you reach a settlement. This is particularly true if the assets are not in both partner’s names. Your ex-partner may try to dispose of some of the property to avoid having to “share” the property with you. He or she may try and hide some of it, or even give away some of your assets. For obvious reasons, it is important to keep track of all the assets.

In this article, we will explain a few legal options available to you to protect your property.

Get An Injunction

An injunction is a court order preventing someone from doing certain things.

If you are concerned that your ex-partner will give away, sell or transfer some of your joint assets, you should act immediately. Apply to the court for an injunction to stop your ex-partner from disposing of any of the assets that should be part of your joint assets.

If your ex-partner already sold the asset, you can get a court order to stop the use of any of the sale money. You can ask for an order to “freeze” bank accounts or other resources that can be used to dispose of the proceeds of the sale.  This way you can at least share in the proceeds of the assets.

Orders Involving Third Parties

In some instances, the only way to protect your property is to get a court order or injunction that is directed at a third party. A third party is anyone or any organization that is not part of your marriage.

You can, for example, get a court order to:

• Transfer superannuation entitlements
• Prevent a bank from selling a house
• Transfer debt from one partner to another

Take note: You must include the third party in the application and serve all documents relating to the case on the third party. This is a legal requirement, even if you and your ex-partner agree to the order. It gives the third party the opportunity to be directly involved in the application. The third party can agree or disagree with the application and present their case to the court.

Register a caveat

A caveat is a legal notice that tells people that you have an interest in certain property. The property cannot be sold until the caveat is removed.

A caveat applies to property registered at the Land Titles Office. You have to show the registrar at the Land Titles Office that you have an interest in the land to register a caveat against the property. This procedure is not always possible, or easy, and you might need legal assistance to make use of this option.

Bankruptcy

If you or your ex-partner is bankrupt at the start of your case or becomes bankrupt during the case, you can include bankruptcy proceedings at the same time as your property or maintenance matter. The Family Law Court can deal with both issues at the same time.

Take note: You have to tell the court and all persons involved in your matter (property or maintenance) if you are bankrupt or a party to a personal insolvency agreement.

If the court is satisfied that your bankruptcy creditors (the people or companies that you owe money to) will be affected by the property or maintenance orders, the court will include the bankruptcy trustee in such proceedings.

The court will balance the rights of the creditors and the non-bankrupt partner when making an order.

Get Legal Advice

This is a complex area of the law and strict time limits apply to certain applications. Get legal advice before you file any applications or sign any agreements.