Don't give up your interest in a property you own with your ex partner without taking a moment to see whether you are eligible for a stamp duty exemption when you purchase your next home.
What is Stamp Duty?
In real estate, stamp duty is a tax that the buyer pays when a property is transferred into the buyer's name. The rate that stamp duty is calculated will vary depending on a range of factors.
Real Estate and Family Law Proceedings
In family law proceedings where there is property involved, one party may be required to transfer their interest in the family home to their former partner for a cash payment or other asset, including superannuation to effect the division of the property at the end of a relationship or marriage. This may occur in three ways:
- By way of Consent Orders where the parties jointly agree on the split of their property and file the agreement at the Court; or
- By Court Order where a Judge makes a final determination on how the property should be split between the parties.
- The parties enter into a Binding Financial Agreement where they agree to split their property. This is different to point 1. Because both parties are required to obtain independent legal advice prior to entering into the agreement and the Agreement is not filed at the Court.
Home Buyer Concession Scheme
In July 2019 the ACT Government introduced a concession to buyers who were going through a separation and affected in the above circumstances. This means if there are family law Orders or a Binding Financial Agreement that includes the transfer of a property and results in one person relinquishing their interest in real estate to their former spouse the Government may waive the stamp duty payable on that person's future home purchase. This legislative change reduces the challenges that members of separated families may face in 'getting back on the property market' after a break-up or divorce.
To be eligible for this exemption the following applies:
- The buyer must be at least 18 years old;
- The total income of all the buyers must be less than the income threshold and depends on the number of dependents you have (link here for the threshold);
- At least one of the buyers must live in the home for at least 12 months; and
- Court Orders or a Financial Agreement must be made prior to the exchange date of the property.
How Parker Coles Curtis can help you claim this concession
Parker Coles Curtis specialises in family law property cases. Founding Directors Debra Parker, Catherine Coles, Jacquelyn Curtis, and their team provide advice, preparation of property settlement documents and separation support. The Parker Coles Curtis team can assist you in navigating property matters at any stage of the family law proceedings and can assist you to understand your entitlements when it comes to the Home Buyer Concession Scheme. The Team offers fixed price conveyancing services and welcomes culturally and linguistically diverse families and the LGBTQI+ community.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.