As a general rule, transfer duty (formerly known as stamp duty), is payable on all property transfers in Queensland. However, there are various concessions and exemptions that are available in certain situations.
As a matter of public policy, transfer duty is not always imposed if someone is transferring an interest in property to their spouse.
There are many situations where this type of transfer might arise. Whatever your circumstance is, it is worth checking out whether a concession or exemption may apply. It may save you thousands of dollars.
This article looks at only the two most common of these situations:
- Where one person owns a house and then wants to transfer part of the property to their spouse.
- Where parties have divorced or split and need to divide their assets. One party may need to transfer their interest in property to the other party.
Transfer of Principal Place of Residence – Do I pay transfer duty if I transfer a part interest in my home to my spouse?
An exemption on paying transfer duty will apply if you are transferring your principal place of residence to your spouse. However, the following must apply –
- The property must be your principal place of residence – your home.
- The transfer must be by gift. This means that your spouse cannot buy the interest in the property.
- The transfer must be to your spouse. Someone will be your spouse if you are married to them, in a de facto relationship with them or if they are your registered partner (under the Relationships Act 2011 (Qld)).
- After the transfer you and your spouse, must both hold an interest in the property- whether as joint tenants or tenants in common. See more info here.
This last requirement means that you can’t transfer the whole of your home to your spouse without paying transfer duty. This is a question that I get asked regularly where people may benefit from just one party owning their property; sometimes for tax structuring, accounting, asset protection or risk purposes.
Transfer of property – Do I pay transfer duty if I transfer property as part of a separation?
There are several exemptions that are available if people are transferring property as part of a divorce or separation.
Under the Family Law Act and the Property Law Act, exemptions to paying transfer duty apply if the transfer of property is giving effect to a Court Order, Financial Agreement or related arrangement.
In some circumstances, you may be also able to ask the Land Titles Office to waive lodgement fees for the transfer documents.
Please feel free to contact our office if you are looking to transfer property to your spouse. There may be an exemption applicable to you (even it is not mentioned in this article). Depending on the market value of your property, transfer duty can get very expensive and it is important to be aware of your rights and obligations so that you can make an informed decision.
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