Owning a home as a single mother is a significant achievement, and it’s essential to safeguard it from potential claims by future partners. Understanding your legal rights and taking proactive steps can help protect your property in the event of a relationship breakdown or legal dispute.
Using a caveat to protect your property
A caveat is a legal notice placed on the property title to alert others of your interest in the property. While it’s commonly used to protect financial or co-ownership interests, you can also use legal tools and agreements to ensure future partners cannot claim your property.
Why use a caveat?
- If you are cohabiting with a partner but retain sole ownership of the property, a caveat can help prevent them from selling, refinancing, or transferring the property without your knowledge or consent.
- It ensures transparency in property ownership during any disputes.
Steps to lodge a caveat
- Consult a lawyer: A legal professional will confirm whether a caveat is appropriate in your situation.
- Prepare the caveat application: Include details of your ownership interest and why the caveat is being lodged.
- Submit the caveat: Lodge the application with Victoria’s land titles office (Land Use Victoria).
- Pay the fee: Fees typically range from $60–$100.
Limitations of a caveat
- A caveat protects financial or legal interests in a property but doesn’t necessarily prevent claims under family law. Additional measures may be required to secure your property against future claims.
Protecting your property in family law
In Australia, the Family Law Act 1975 governs property settlements following relationship breakdowns, including de facto relationships. Even if your property is solely in your name, a partner may have a claim based on contributions made during the relationship.
When can a partner claim?
De facto relationships
A partner may make a claim if:
- The relationship lasted at least two years, OR
- The relationship produced a child, OR
- They made significant financial or non-financial contributions to the property.
Marriage
Spouses are automatically entitled to seek property settlement under the Family Law Act, regardless of the length of the marriage.
Cohabitation and contributions
Living together in your home may establish a basis for claims, especially if the partner contributed financially (e.g., paying bills or mortgage) or non-financially (e.g., renovations or childcare).
Proactive steps to protect your property
To minimize the risk of future claims, consider the following strategies:
Binding Financial Agreements (BFAs)
A BFA (often called a prenup or cohabitation agreement) is a legally binding document that outlines how assets, including your home, will be divided in the event of separation.
It must:
- Be signed by both parties.
- Include full financial disclosure.
- Be prepared with independent legal advice for both parties.
BFAs are enforceable under the Family Law Act, provided they meet legal requirements.
Maintain clear financial records of:
- Mortgage repayments made solely by you.
- Contributions made by your partner (if any), including receipts or agreements.
- Document any major repairs, renovations, or upgrades funded exclusively by you.
Limiting financial contributions from your partner:
- Avoid joint accounts or allowing your partner to contribute directly to the mortgage or household expenses linked to the property.
- If they contribute, clearly define these contributions in writing (e.g., as rent or a loan).
Registering sole ownership:
- Ensure your name is the only one on the property title.
- If your partner insists on financial involvement, seek legal advice to draft an agreement protecting your ownership.
Updating your will:
- Specify in your will that the property is to be inherited by your children or other beneficiaries.
- Review and update your will regularly, especially after entering or exiting a relationship.
What the law says about property claims
Family law considerations
Under the Family Law Act, courts divide property based on:
- Contributions: Financial (e.g., paying the mortgage), non-financial (e.g., renovations), and domestic (e.g., childcare) contributions are considered.
- Future needs: Courts assess each party’s financial circumstances, including caregiving responsibilities and earning capacity.
- Just and equitable division: The court aims for a fair outcome, not necessarily an equal split.
Time limits for claims
- De facto relationships: Claims must be made within two years of the relationship ending.
- Marriage: Claims must be made within 12 months of divorce.
Key tips for single mothers
- Act early: Address legal protections when entering a new relationship, not after it has progressed.
- Document agreements: If a partner moves in, outline terms in writing, specifying that their contributions (if any) do not give them ownership rights.
- Seek legal advice: A family lawyer can help you draft BFAs, caveats, or agreements to safeguard your property.
- Communicate clearly: Be upfront with partners about your intentions to protect your home for yourself and your children.
- Keep assets separate: Avoid mingling personal and partner assets, especially if you want to retain sole ownership of your property.
Case study: protecting your property
Scenario
Emma, a single mother, owns a home outright. After dating for two years, her partner moves in. To protect her property:
- Emma lodges a caveat ensuring no changes can be made to the property title without her consent.
- She and her partner sign a BFA specifying that her home remains her sole asset.
- Emma retains detailed financial records of her mortgage payments and ongoing expenses.
If the relationship ends, these measures ensure Emma’s property is protected from claims under family law.
CSMC’s Housing resource was made possible thanks to the support of:
