Stamp Duty Exemption under the Family Law Act 1975
You and your partner own a house together and your relationship has broken down. You have discussed going your separate ways into the future and have agreed that you will keep the house whether it be with or without a cash payment to your ex-partner. Now what do you do?
It is great that you and your ex-partner have agreed to a property settlement. Reaching an agreement is the hardest part of a Family Law Property matter.
In order to change a property from joint names to one party’s sole name you are required to lodge a Transfer with the Office of Land and Property information. Property Transfers are generally subject to stamp duty payable to the Office of State Revenue.
However, there is an exemption to stamp duty in certain circumstances when there is a breakdown in your relationship under Section 68 of the Duties Act 1997. In order to satisfy the exemption from stamp duty the following must apply:
- Your relationship has permanently broken down; and
- A property is to be transferred to one party of the relationship or their child; and
- The property transfer is in accordance with a Financial Agreement or Consent Orders under the Family Law Act 1975.
Generally you will require a Lawyer to prepare your Consent Orders to satisfy the stamp duty exemption. Consent Orders are signed by each of you confirming your agreement and then posted to the Family Court of Australia for approval. The Court will need to be satisfied that your agreement is just and equitable in the circumstances. Following the Consent Orders being sealed by the Court, we can then attend to transferring the property into one party’s sole name.
If you are the party receiving the property, in addition to the transfer, you will be required to refinance any existing mortgage on the property into your sole name and to obtain any additional funds you require to make any agreed payment to your ex-partner. It is best to make these enquiries with your financial institution early on to confirm that you have capacity to retain the property subject to your current mortgage plus any payout to be made to your ex-partner.
The team here at Burbank & Brown understand that you may be hesitant to involve Lawyers as that will ‘just complicate things’. We pride ourselves on being approachable, practical and honest in our advice so that we can assist you to move forward in the most cost-effective and timely way.
For your assistance, here is an example: if the jointly owned property is valued at $500,000.00 and you will be acquiring your ex-partners half share of the property, you will be liable to pay approximately $7,260.00 in Stamp Duty to the Office of State Revenue. For approximately one-third of the price of the stamp duty in this example, we can finalise your agreement into Consent Orders and you will be exempt from paying any stamp duty. This will also protect you from any further claims against your property from your ex-partner in the future.
Need advice?
For more information regarding stamp duty, get in touch with Burbank & Brown.
