If you live in a home with your partner but your name isn’t on the property title, you may still have legal rights. Many people contribute to a home, financially or through things like renovations, childcare, or homemaking, without ever becoming a registered owner. If the relationship breaks down or your partner tries to sell, this can leave you feeling worried or powerless.

Under the Property (Relationships) Act 1972 (PRA), partners who are, or were, in a qualifying relationship, such as marriage, a civil union, or a de facto partnership, may be able to protect their interest in a property by lodging a Section 42 notice. This acts like a caveat and can stop the property being sold or refinanced without your knowledge while your rights are being sorted out.

What is a Section 42 PRA notice?

Section 42 of the PRA allows a spouse or partner who is claiming an interest in land to lodge a notice of claim to an interest in the property's title; having the same effect as a caveat. Section 42 is an important legal tool in protecting potential rights in land that may be relationship property, thereby allowing benefits to be obtained. It is commonly exercised where only one partner owns the property, which may arise if they purchased it before the beginning of the relationship or if the property was inherited before or during the relationship. 

What is the effect of a Section 42 PRA notice?

Lodging a notice of claim formally notifies the registered owner of your potential interest in the land. While on its own it does not establish a legal interest, it will provide protection against dealings that might go against your claim. For example, it might prevent the registered owner from selling the property without your consent while your relationship property claim is unresolved.

What are the grounds for a successful Section 42 PRA notice?

To lodge a notice of claim to an interest in property, you must satisfy the following two requirements:

1. You must be, or have been, married to, in a de facto relationship with, or in a civil union with the person who is the registered proprietor of the land, beneficially interested in, or entitled to the land.
2. There must be a potential claim to an interest in property under the PRA. This means you must be able to demonstrate that you have a potential interest in the property deriving from your relationship with the owner.

You do not need not establish a substantive claim to the interest in the property to register a section 42 notice. It is merely designed to prevent potential dealings with the property and to provide time for a substantive claim to be put forward.

You can make the claim during the relationship, after separation or divorce, or after the death of the owner, provided the necessary requirements are met. In some cases, someone representing you may lodge a claim after your death to prevent the surviving spouse from disposing of land pending the deceased's estate making a PRA claim in respect to the property.

Someone has lodged a Section 42 notice on my property? What can I do?

You are able to apply for a removal of the notice, which may be done if the Court is satisfied that the claim is unsustainable, suspicious or no longer serves a useful purpose. However, removal will be denied if an arguable case for the retention of the notice remains.

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