Getting advice during a relationship breakdown - Through Property Division Agreement

The breakdown of relationship is an extremely difficult time for some people, and whilst having to battle through the emotional issues that flow from the event, people are also often faced with attempting to sort through and make claim to the possessions they have accumulated over time with their ex – partner. This will often include Real Property.

In the fortunate cases, parties to a separation are completely harmonious, and come to their own agreement regarding these matters.

For the purposes of this article, ‘Real Property’ will mean residential and commercial Buildings and Land. Please also note that this is not an exhaustive list of the definition of ‘Real Property’.

When you transfer Real Property in Queensland, Transfer Duty (also known as Stamp Duty) will be payable on the Transfer. If no consideration is paid for the Transfer and the parties are ‘related’ parties, you will be required to undertake a valuation on the Property, and Transfer Duty will be paid upon the Market Value.

There are of course, exceptions to the rule. This article looks to explain why getting legal advice is so important during a separation – even when you both agree on the Property division.

Bradley & Bray Solicitors do NOT practice in the area of Family Law, and this article relates only to the Transfer of Property following Court Orders or Agreements. Should you require Family Law advice, we are happy to refer you accordingly.

Get Advice

When going through a separation, you should ALWAYS get legal advice. Often people will avoid paying solicitors fees because the breakdown of the relationship is ‘amicable’, and both parties are in agreement as to what should happen with the Property, children etc.

But what happens when it is no longer amicable? Or further down the line one party to the relationship gets told they should’ve got/done more? It is at that time the parties will wish they had formalised the separation.

But further than this, a transfer of Real Property will normally be exempt from dutiable liability when the Property is transferred in accordance with a Family Law Act Agreement, Property Law Act Agreement or Court Order.

So what are the advantages?

When the parties to a separation are in agreement about property division, children, maintenance and other matters, such agreement can (and should) be formalized by a Family Law Solicitor. Each party must be individually represented at this time.

The process by which any Real Property is to be dealt with will be contained in the Agreement/Order.

This is important to you, as following the execution of a properly constituted Agreement (or issue of Court Order), the party entitled to receive the Property will normally be exempt from paying Transfer Duty, providing that the Transfer is at all times effected in accordance with that Agreement/Order.

Now whilst the parties will incur legal fees to finalize this process, the parties can be satisfied that;

1. Their agreement has been properly formalised;

2. Each party has reduced their legal exposure to each other going forward;

3. There is an element of finality to the separation;

4. They will have avoided paying Transfer Duty and Land Title registration fees.

What should you do next?

If you are going through a separation, you should seek advice immediately from a Family Law Solicitor to ensure you do not lose any rights you may have.

In the event that both parties are in agreement with respect to property division, the parties should have this agreement documented accordingly. Your Family Law solicitor will be able to advise you as to what process is right for you, depending on your personal circumstances.

If you have a Mortgage over your Property, you will need to discuss with your solicitor the appropriate stage to inform your Bank of the matter, and potential re-finance that will need to take place following the execution of an Agreement/Issue of Court Order. It is important not to do this too early, as some finance approvals will only last for a short period of time, and may expire prior to Settlement taking place.

Once the Agreement has been executed by both parties, or the Court has issued an Order, come see us at Bradley & Bray.

Mark Bray and Jacob Corbett have experience in finalizing the transfer of Property pursuant to Agreement and Court Orders, including:

1. Assessing whether the Transfer will be subject to dutiable liability;

2. Applying the Transfer duty exemption;

3. Drafting documentation in accordance with the Order/Agreement;

4. Liaising with your Family Law Solicitors;

5. Liaising with your Financier to facilitate a re-finance Settlement; and

6. Co-ordinating the matter in a timely manner to adhere to any expiry dates.

 Should you wish to discuss further, please call us on (07) 5441 1400 to book an appointment with Mark Bray or Jacob Corbett.

 Author: Jacob Corbett

Note: This summary is provided for general information only, and should not be construed as Legal Advice. Should you require Legal Advice in respect of any of the matters raised above, we strongly recommend that you seek legal advice as soon as possible.