By Kim Morrison
It’s 3:15pm on a Friday afternoon.
You’re trying to clear your inbox so you can down tools at 4:59pm (lol). You look forward to enjoying some sunshine over the weekend, after a week of scurrying home in the shadows of night like some work-life balance avoiding zombie.
Your phone rings.
You consider pretending not to be at your desk. Sigh. Professionalism gets the best of you.
Susan is hysterical.
INTRODUCING SUSAN
Susan’s been a stay-at-home mum for 20 years. She’s lived all around the world, supporting Husband’s career.
The family home name is in Husband’s name “for tax reasons”. Susan has made no financial contribution to it. It’s the family’s only major asset.
You’ve told Susan that her contributions-based entitlements to a property settlement are around 50 per cent. Her homemaker and parenting contributions are given a significant weight under the Family Law Act.
WHAT’S GOING ON, SUSAN?
Susan’s just found out that Husband has sold their family home.
She had no idea, until the buyers knocked on the door and asked if they might pop in and measure the windows for new curtains. Settlement is on Tuesday, but they really want to get a head start.
Husband says he’s going to buy himself a villa in Phuket and live out his days working in Africa and enjoying himself between swings. It’s his house, after all. He can do what he wants with it.
You mentally strike out going to your kid’s soccer game tomorrow.
JUST LODGE A CAVEAT, SUSAN
OPTION 1: Get a caveat to hold up the sale, at least until you can sort out the sale proceeds.
You call up your property lawyer mate (a Friday ruined is a Friday shared, right?!).
Good thinking.
Except it’s not.
Susan’s swept and mopped the floor countless times, and made that house into a home for her family. She’s the only one who knows how to turn on the oven.
Yet Susan probably doesn’t have a caveatable interest in her own home.
A person must have a proprietary interest to properly lodge a caveat against the land. A spouse will need to rely on evidence of a resulting trust or constructive trust over the land as the source of their beneficial, equitable interest. A mere application to the Family Court for a property alteration is not enough to support a caveat.
Sorry Susan, says your property lawyer mate. Not on my practising certificate.
WE’LL FILE AN URGENT APPLICATION
Option 2: Urgent injunctive relief
Goodbye plans. Goodbye Monday, blocked out to tackle that trial affidavit.
You tell Susan she can file an urgent application to the Family Court, seeking an injunction restraining Husband from dealing with the net sale proceeds, other than to place them in your trust account.
It’s not a long application, but it still takes time, and it’s not particularly cheap. The FCWA filing fee alone is $585 ($860, if you want parenting orders too).
You call in a quick apology to your spouse (“Not a recovery order … an urgent injunction. It’s tonight, or during soccer. Sorry babe, I’ll explain later x”).
You pump out the application.
Thank goodness eCourts is working today (not to mention the office scanner).
You ask the Court for an urgent, ex parte hearing.
You get a call up at 10:40am on Monday. It’s been listed at not before 11am.
You ditch your unfinished trial affidavit (when am I going to get this done?!), and hustle down to Court.
The duty list is long. You’re stood over until 2pm. You skip lunch (again), and try to work on the trial affidavit.
Your matter is called at 3:15pm. You get your urgent injunctions.
You hot foot it back to the office to arrange service.
You do everything right.
You serve the Husband via email, and in person. Your covering letter warns him that he must not deal with the sale proceeds.
You send copies of the orders to the settlement agent and real estate agent, and tell them what the score is. You follow up with a call.
Tomorrow, the funds should land in your trust account.
BUT TOMORROW NEVER COMES
The settlement agent isn’t instructed by you or Susan. No, they do what the Husband tells them.
The real estate agent pays the deposit over to the Husband. He’s not getting involved.
The Husband gets the money, and transfers it straight offshore. And he follows it. Like he said he would. Catch me if you can.
THERE IS AN EASY FIX
Spousal caveats would allow people like Susan to lodge a caveat to protect her family law claim.
A spousal caveat would be a new type of caveatable interest, predicated on a potential family law cause of action.
A decade ago, in October 2015, the Family Law Practitioners Association of WA made a written submission to the then-AG.
A year later, in August 2016, the then-AG referred the matter to the Law Reform Commission of WA. The LRC published a discussion paper on 12 May 2017, requesting submissions.
Eight years ago, on 10 October 2017, the LRC’s Report and recommendations were tabled in Parliament.
The LRC made nine recommendations (see page 7 of the Report), including:
- A new category of “spousal caveat”, based on a matrimonial or de facto relationship, and where the caveator is intending to, or has commenced proceedings in the FCWA to alter the interests in the property of the relationship, including the subject land.
- Family Court of WA have exclusive original jurisdiction to make orders with respect to the “spousal caveat”.
- The effective duration of the “spousal caveat” be limited by reference to the current limitation periods that apply for an order altering interests in the property of a relationship; two years from the end of a relationship for a de facto spouse and 12 months from any divorce order.
- Where a couple has separated and a “spousal caveat” has been lodged to protect the interests of a spouse but the “spousal caveat” has since expired or been withdrawn, there should be no prohibition on subsequent “spousal caveats” being lodged should the couple reconcile and subsequently separate again. In this circumstance, the spouse who lodged the subsequent “spousal caveat” should be required to bring substantive proceedings in the FCWA for a property alteration order within 21 days of filing the further “spousal caveat” and should they fail to do this, the further “spousal caveat” will expire.
- Where the caveator fails to agree to withdraw a caveat after the expiration of the relevant period, the registered proprietor can use the existing show cause notice procedure to remove the caveat.
WHAT NEXT?
The Family Court waiting times are some of the longest ever. Clients are told to expect a wait of three to four years from the date of filing until a final trial.
A simple solution has been offered, which should assist to reduce the Court’s load by reducing the need to such urgent applications.
Spousal caveats will allow the Family Court’s resources to be spent on other matters. Like kids who aren’t getting to see a parent. Parents, who are in desperate need of financial support. Victims of family violence, still trapped in a drawn out process.
Justice requires urgent action.
Had Susan been able to lodge a spousal caveat upon her first family law appointment, none of this would have happened.
