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02 4704 9991

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PO Box 1835 PENRITH NSW 2751

Divorce

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Transferring Property Following the Breakdown of a Relationship

Are you married or in a de facto relationship that has broken down resulting in the need to transfer real estate from one party to another?

Unfortunately marriages and de facto relationships break down all the time. If following such a relationship breakdown a house that is jointly owned needs to be transferred from one party to another as a result of a property settlement, it is important that you have proper legal advice. Under Section 68 of the Duties Act 1997, a property transfer is exempt from stamp duty if the transfer is the result of the breakup of a marriage, de facto relationship or domestic relationship.

There are important technical requirements that need to be complied with to make sure there is no stamp duty on the transaction, which will save you thousands of dollars:

  • If you are married you must have a Financial Agreement in place under the Family Law Act 1975 or some other form of written agreement evidencing the fact that the breakdown of your marriage is irretrievable and you have decided to split the matrimonial assets;
  • If you are in a de facto relationship you must have a Financial Agreement in place under the Family Law Act 1975 or Court Orders such as Consent Orders. Only a family lawyer can prepare these for you;
  • If you are in a domestic relationship you must have Court Orders in place dividing the assets of each party or a Termination Agreement in accordance with the Property (Relationships) Act 1984.

Similar rules apply in the context of transfers of property between married and de facto couples whereby you can obtain a stamp duty exemption if as a result of the transfer the property will be held by the couple as joint tenants or tenants in common and equal shares.

The most common context where this arises is where one party to the relationship already owns real estate before the relationship commences and later wishes to transfer share of the property to their partner.

If you need family law advice or property law advice, contact one of our lawyers today on (02) 4704 9991.

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Getting a Divorce

Unfortunately, the percentage of marriages that result in divorce in Australia is quite high. If you find yourself in a position where your marriage has come to an end, this article is designed to give you an insight to process of divorce.

  1. You must satisfy the Family Court that you and your spouse have been separated for a period of at least 12 months before applying to divorce.
  2. You must demonstrate to the Family Court that there is no reasonable likelihood in resuming married life (note: It is possible to live together in the same home but still be separated).
  3. If you can satisfy the above two criteria, you are then able to make an application for divorce. Part of your application will include proof that you are in fact married, proof that you are an Australian citizen, and details about when you separated from your spouse.

In Australia, the principal of “no fault divorce” applies. This means that in considering a divorce application the Court does not take into account why the marriage ended, only evidence that satisfies the Court that the marriage has broken down irretrievably.

In circumstances where the marriage has resulted in children aged under 18, the Family Court will only grant a divorce if it is satisfied that proper arrangements have been made for them.

It is important to note that a divorce is different to a financial settlement and parenting/custody of children.

You must seek the advice of a Family Lawyer to ensure that not only are you successful in divorcing your spouse, but also that you receive a fair share of the matrimonial assets and that any children of your relationship are appropriately cared for.

Some of the things that the law considers when deciding what is a fair asset split is the contribution by each party to the asset pool, non financial contributions such as the care of children and maintenance of the family home and the capacity of each party to earn income.

If you need family law advice, contact Complete Legal & Conveyancing to arrange a Skype or telephone consultation today.