About Brendan Hanks

Practice manager at Kate Austin Family Lawyers

Entries by Brendan Hanks

Divorce v Consent Orders

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Yes, in Australia, it is absolutely possible to be divorced (meaning your divorce order, which is equivalent to a “decree absolute” in other jurisdictions, has become final) before you apply for Consent Orders.

Here’s a breakdown of the key points:

  • Divorce vs. Property/Parenting Matters: A divorce (or divorce order) is simply the legal ending of the marriage. It doesn’t automatically resolve financial matters (property settlement, spousal maintenance) or parenting arrangements for children. These are separate issues.
  • Time Limits for Consent Orders (Financial):
    • If you are married, you have 12 months from the date your divorce order becomes final to apply for financial consent orders or commence proceedings in court for a property settlement.
    • If you were in a de facto relationship, you generally have 24 months from the date of separation to file for financial consent orders.
    • You can apply for financial consent orders before you are divorced, even immediately after separation.
  • Parenting Consent Orders: There are generally no specific time limits for applying for parenting consent orders after separation.
  • Practicality: Many people choose to finalize their financial and parenting arrangements (through Consent Orders or a Binding Financial Agreement) before applying for divorce. This is often because resolving these practical matters is more pressing. However, it’s also common to apply for Consent Orders after the divorce is final, especially if you have a clear agreement.
  • No Fault Divorce: Australia has a “no-fault” divorce system, meaning the court doesn’t consider why your marriage ended. The only requirement for divorce is that you’ve been separated for 12 months and there’s no reasonable likelihood of getting back together.

In summary, while you can get divorced before sorting out your financial and parenting matters, you don’t have to. Many people find it more practical to sort out the practical arrangements first. Just be mindful of the 12-month time limit for financial matters after your divorce becomes final.

It’s always recommended to seek legal advice from a family lawyer to understand your specific situation and ensure you meet all requirements and deadlines.

How does the best interests of the child affect Family Court matters.

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Best interests of the child

 

When Australian courts, including the Federal Circuit and Family Court of Australia (FCFCOA), are asked to make Parenting Orders by consent (i.e., Consent Orders that deal with arrangements for children), the paramount consideration is the best interests of the child.

 

This principle is enshrined in Section 60CA of the Family Law Act 1975 (Cth). It means that all decisions about parenting arrangements must prioritise the child’s well-being and development above all else, including the wishes or interests of the parents.

Even when parents agree on arrangements and submit them as proposed Consent Orders, the Court (usually a Registrar in the first instance) must independently review these proposed orders and be satisfied that they are, in fact, in the child’s best interests before they can be made into legally binding orders.

To determine what is in a child’s best interests, the Family Law Act 1975, specifically Section 60CC, sets out a list of factors that the Court must consider. These are categorised into “primary considerations” and “additional considerations.”

 

Primary Considerations (Section 60CC(2)):

  1. The benefit to the child of having a meaningful relationship with both of their parents: The law recognises that it is generally in a child’s best interests to have both parents involved in their lives, provided it is safe to do so.
  2. The need to protect the child from any physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence: This factor is given greater weight than the benefit of a meaningful relationship if there is a conflict between the two. The safety of the child is paramount.

 

Additional Considerations (Section 60CC(3)):

These are numerous and allow the Court to take a holistic view of the child’s circumstances. They include:

  • The views expressed by the child and any factors (which may include the child’s maturity and/or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
  • The nature of the relationship of the child with each of the child’s parents and with other persons (including any grandparent or other relative of the child).
  • The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
  • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from:
    • Either of his or her parents; or
    • Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
  • The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
  • The maturity, sex, lifestyle and background (including lifestyle, culture and traditions of the child and either of the child’s parents) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
  • If the child is an Aboriginal child or a Torres Strait Islander child:
    • The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
    • The likely impact any proposed parenting order under this Part will have on that right.
  • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
  • Any family violence involving the child or a member of the child’s family.
  • If a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the circumstances in which the order was made, the evidence (if any) on which the order was based, and any other relevant matter.
  • Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
  • Any other fact or circumstance that the court thinks is relevant.

 

How it Applies to Consent Orders:

When parents submit an Application for Consent Orders for parenting arrangements, they are essentially stating that they believe these arrangements are in their child’s best interests. The Court reviews the application and the proposed orders against these legislative factors.

  • The Court will consider the information provided by the parents in their application, which should implicitly or explicitly address how the proposed arrangements meet the child’s needs in light of these factors.
  • If the Court has concerns that the proposed orders are not in the child’s best interests (e.g., if they seem to expose a child to risk, or don’t adequately consider the child’s relationship with both parents where safe), it may:
    • Ask for more information.
    • Suggest changes to the proposed orders.
    • In some cases, refuse to make the orders as proposed and list the matter for a short hearing or direct parents to family dispute resolution.

Therefore, when parents are negotiating and drafting proposed Consent Orders for their children, they should always frame their discussions and the resulting agreement around these “best interests” principles. This not only helps ensure the arrangements are genuinely good for their children but also increases the likelihood of the Court approving their agreement.

What is a “Just and Equitable Consent Order”?

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What is a “Just and Equitable” outcome in Family Law

 

In the Context of Consent Orders:

When you apply for Consent Orders, you need to provide the Court with enough information in your application (including a summary of assets, liabilities, contributions, and future needs) to allow it to make this assessment. If the Court is not satisfied that the proposed orders are just and equitable, it may not approve them and may require the parties to provide more information this is known as a requestion.

The aim is to ensure that the agreement reached is fair, considering all the relevant circumstances, and not the result of one party being disadvantaged, uninformed, or pressured into an unfair agreement. In Australian Family Law, when the Court is asked to make Consent Orders about how property and finances will be divided after a separation, it must be satisfied that the proposed orders are “just and equitable.”

Essentially, this means the agreement must be fair and reasonable to both parties in all the circumstances of their specific case. It’s a core principle enshrined in the Family Law Act 1975 (primarily in Section 79 for married couples and

for de facto couples) to ensure that property settlements are not only agreed upon but also achieve a fair outcome.

“Just and equitable” does not automatically mean a 50/50 split of assets. The law recognises that every relationship is different, and what is fair in one situation may not be fair in another.

To determine if proposed Consent Orders are just and equitable, the Court (and by extension, the parties when drafting their agreement) will generally consider a process often referred to as the “four-step process”:

  1. Identify and Value the Net Asset Pool:
    • This involves listing all assets, liabilities (debts), and financial resources of both parties.
    • Assets can include the family home, investment properties, bank accounts, shares, superannuation, cars, furniture, and business interests.
    • Liabilities can include mortgages, loans, and credit card debts.
    • The net asset pool is the total value of assets minus the total value of liabilities.
  1. Assess the Contributions of Each Party:
    • The Court looks at the contributions made by each person to the acquisition, conservation, or improvement of the property, as well as to the welfare of the family. Contributions can be:
      • Direct financial contributions: Such as income, wages, inheritances, or gifts received by one party that benefited the relationship.
      • Indirect financial contributions: Such as paying bills or making mortgage repayments out of one’s income, which allowed the other party to use their income for other purposes or to accumulate assets.
      • Non-financial contributions: Such as performing renovations or improvements to a property or acting as a director in a family business without significant remuneration.
      • Contributions as a homemaker or parent: The law specifically recognises the significant value of contributions made to the home and children, which enable the other party to work or pursue other financial opportunities.
  1. Consider Future Needs and Other Relevant Factors (often referred to as Section 75(2) factors or Section 90SF(3) factors marriages or similar considerations.
    • The Court then considers a range of factors relating to the future needs of each party. These can lead to an adjustment of the contribution-based entitlements. These factors include:
      • The age and state of health of each party.
      • The income, property, and financial resources of each party (including superannuation).
      • The physical and mental capacity of each party for appropriate gainful employment.
      • Whether either party has the care or control of a child of the relationship who has not attained the age of 18 years.
      • Commitments of each party that are necessary to enable them to support themselves or a child or another person they have a duty to maintain.
      • The duration of the relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration (or whose property share is being determined).
      • There is a significant need to protect a party who wishes to continue their role as a parent.
      • If either party is living with another person, the financial circumstances relating to that cohabitation can be taken into consideration.
      • Any child support that a party provides or might be liable to provide in the future.
  1. Determine Whether the Proposed Division is Just and Equitable:
    • Finally, the Court steps back and looks at the overall practical effect of the proposed orders. It considers all the circumstances and the findings from the previous steps to decide whether the proposed division of property is, in reality, fair and equitable to both parties. This involves an element of discretion to ensure the outcome is practically workable and achieves overall fairness.
  1. When parties submit Consent Orders, they are essentially asking the Court to endorse their agreement as meeting this “just and equitable” standard. The Court has an overriding discretion and will not simply “rubber-stamp” an agreement if it appears to be significantly unfair to one party, even if they have both consented. This is why full and frank financial disclosure is crucial, so the Court can properly assess the fairness of the proposed orders.

 

What can be included in a Consent Order

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What can be included in Consent Orders?

In family law, consent orders are legally binding agreements made between separating or divorcing couples that are then approved and formalised by a court. Consent Orders cover a range of issues related to the breakdown of a relationship, such as property division, child custody (parenting arrangements), child support, and spousal maintenance.

Here’s a more detailed explanation of consent orders specifically within the context of family law:

What can be included in Consent Orders Key Areas Covered by Family Law Consent Orders:

  • Parenting Orders (Child Custody): These orders outline the arrangements for the care and upbringing of children. They typically address:
    • Living Arrangements: Where the child will live (primary residence).
    • Contact/Visitation: How often and when the child will spend time with each parent. This can include regular visits, holidays, and special occasions.
    • Communication: How parents will communicate with each other and with the child.
    • Decision-Making: How major decisions about the child’s education, health, and welfare will be made (solely by one parent or jointly).
    • Specific Issues: Addressing specific concerns like international travel, religious upbringing, or medical treatment.
  • What can be included in Consent Orders  – Financial Orders (Property Settlement): These orders deal with the division of assets and liabilities acquired during the relationship. This can include:
    • Real Estate: The family home, investment properties, etc.
    • Bank Accounts: Savings, checking accounts, etc.
    • Superannuation (Retirement Funds): Splitting superannuation entitlements.
    • Shares and Investments: Stocks, bonds, mutual funds, etc.
    • Vehicles: Cars, boats, motorcycles, etc.
    • Personal Property: Furniture, jewellery, artwork, etc.
    • Debts: Mortgages, loans, credit card debt, etc.
  • Spousal Maintenance Orders: These orders provide financial support to one spouse by the other if they are unable to adequately support themselves after the separation. Spousal maintenance is typically awarded when one spouse has a significantly lower income or earning capacity than the other, often due to having been the primary caregiver for children during the marriage.What can be included in Consent Orders 

Stamp Duty Exemptions with Consent Orders in Adelaide

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Stamp Duty exemptions with Consent Orders in Adelaide 

Stamp Duty exemptions with Consent Orders in Adelaide

In Adelaide, South Australia, separating couples can also benefit from an exemption from stamp duty (referred to as “stamp duty” or “transfer duty” in SA) when transferring property as part of their family law property settlement. This exemption can lead to significant savings during what is often a financially challenging time.

Legislation for Stamp Duty Exemption in South Australia:

The relevant legislation in South Australia that provides for this exemption is primarily the Stamp Duties Act 1923 (SA), which is designed to integrate with the Commonwealth’s Family Law Act 1975 (Cth).

Specifically, the key provision is:   Stamp Duties Act 1923 (SA):

    • Section 71CA – Exemption from duty in respect of Family Law instruments: This is the core section in South Australia. It explicitly states that certain instruments (including deeds or other instruments, like applications to transfer registration of a motor vehicle) are exempt from stamp duty if they are executed to give effect to or are consequential on:
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      • A Family Law agreement (which includes maintenance agreements, financial agreements, or splitting agreements under the Family Law Act).
      • A Family Law order (an order of a court under Part VIII, VIIIA, VIIIAB or VIIIB of the Family Law Act 1975 of the Commonwealth).
    • Conditions for exemption (under Section 71CA(2)): To qualify, the agreement or order must relate to a marriage that has been dissolved or annulled OR a marriage or de facto relationship that the Commissioner of State Taxation is satisfied has broken down irretrievably.
    • Crucially, the instrument must also provide for the disposition of property between the parties to the marriage (or former marriage) or former de facto relationship, and no other person, other than a trustee of a superannuation fund (if relevant), takes or is entitled to take an interest in a property.
  • Family Law Act 1975 (Cth):
    • The South Australian legislation directly references the Family Law Act 1975 (Cth). Therefore, the property transfer must be formalised under the mechanisms provided by the Commonwealth Act, which include:
      • Court orders: These are orders made by the Federal Circuit and Family Court of Australia (FCFCoA), including Consent Orders (under Part VIII for married couples or Part VIIIAB for de facto couples)
      • Binding Financial Agreements (BFAs): These are private agreements made under Part VIIIA (for married couples) or Part VIIIAB (for de facto couples).

In essence, if a property transfer in South Australia is a direct consequence of a marriage or de facto relationship breakdown and is formalised by a Family Court Consent Order,  Stamp Duty exemptions with Consent Orders in Adelaide will be granted  Section 71CA of the Stamp Duties Act 1923 (SA).

The Process for Claiming the Exemption in South Australia:

When you are claiming the stamp duty exemption in South Australia is managed by RevenueSA (a division of the South Australian Department of Treasury and Finance). It’s typically handled by a legal professional (solicitor or conveyancer).

Here’s a general outline of the process:

  1. Obtain a Sealed Court Order (Consent Order) or a Binding Financial Agreement (BFA):
    • This is the fundamental requirement. The FCFCoA must have approved and sealed your Consent Orders, or you must have a valid Binding Financial Agreement. These documents must explicitly state the property being transferred and the parties involved and confirm that the transfer is part of the family law property settlement due to the relationship breakdown.
  1. Prepare Transfer Documents:
    • For real estate, a Form A1 – Transfer from Land Services SA (which manages land titles in SA) is prepared.
    • For other dutiable property (e.g., motor vehicles), the appropriate transfer forms for that asset type will be used.
  1. Complete an Application for Exemption/Refund Form (e.g., Form D1.2 – Declaration in respect of a Transfer of Land, or a specific family law exemption form if available):
    • RevenueSA provides specific forms for claiming exemptions. For family law transfers, you’ll need to complete the relevant declaration that certifies the transfer is due to a relationship breakdown and is pursuant to a Family Law Act instrument.
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    • As of recent information, RevenueSA advises that Stamp Duty exemptions with Consent Orders in Adeliade for transfers between spouses/domestic partners where the property is the couple’s principal place of residence, a Statutory Declaration (Form 71CB) can be used if there is no formal court order or BFA and the property is the family home or a motor vehicle. However, for broader property settlements, relying on the formal Family Law Act instruments (Consent Orders or BFAs) is the most common and robust way to secure the exemption for all dutiable property types.
  1. Lodge Documents with RevenueSA:
    • Your lawyer or conveyancer will lodge the transfer documents, along with the sealed Consent Order (or certified BFA) and the completed exemption form/declaration, with RevenueSA.
    • Lodgment can be done electronically or physically, depending on the transaction type and professional’s setup.
  1. Assessment and Endorsement:

RevenueSA will assess the transaction. If satisfied that all of the conditions under Section 71CA (or 71CB for simple cases) of the Stamp Duties Act are met, they will endorse the transfer as being stamp duty exempt.

  1. Record Keeping:
    • It is crucial to keep thorough records, including:
      • The original sealed Consent Order or a certified copy of the Binding Financial Agreement.
      • The completed exemption application/declaration.
      • The endorsed (stamped) Transfer of Land document.
      • Any correspondence from RevenueSA.

Crucial Condition: The transfer of property Stamp Duty exemptions with Consent Orders in Adeliade must be made in accordance with the terms of the sealed Consent Order or Binding Financial Agreement, and it must be solely between the parties to the marriage or de facto relationship (or, in limited cases, a trustee of a superannuation fund as directed). The Commissioner must also be satisfied that the relationship has broken down irretrievably.

Frequently Asked Questions on Stamp Duty Exemptions with Consent Orders in Adelaide (FAQs):

Q1: Does this exemption apply to all property types in South Australia?

A: Yes, Section 71CA of the Stamp Duties Act 1923 (SA) broadly applies to “dutiable property” transferred as a result of a family law instrument. This includes real estate (residential, commercial, investment properties) and motor vehicles.

Q2: Do I need a lawyer or conveyancer to claim the exemption in South Australia?

A: While it’s technically possible to prepare some forms yourself, we highly recommended to engage a lawyer or conveyancer experienced in South Australian property law and family law settlements. They can: * Ensure the Consent Orders are properly drafted and approved by the FCFCoA, or the BFA is validly executed. * Navigate the specific requirements of RevenueSA and Land Services SA. * Accurately complete all necessary forms and declarations to qualify for the exemption. * Avoid potential delays, rejections, or errors that could lead to duty being incorrectly charged.

Q3: What if we have an informal agreement without Consent Orders or a BFA? Will we still get the exemption?

A: For transfers of the former principal place of residence (family home) or a motor vehicle, South Australia has a specific provision (potentially Section 71CB) that allows for an exemption via a statutory declaration even without formal Consent Orders or a BFA, provided the Commissioner is satisfied the relationship has broken down irretrievably.

However, for all other types of property (e.g., investment properties, shares, businesses) Stamp Duty exemptions with Consent Orders in Adelaide or for more complex settlements, formal Consent Orders or a Binding Financial Agreement are generally necessary to secure the stamp duty exemption under Section 71CA. It is always best practice to formalise any property settlement, regardless of the property type, to ensure finality and enforceability.

Q4: Does the exemption apply to Capital Gains Tax (CGT) in South Australia?

A: Stamp duty is a state tax, and CGT is a federal tax. The stamp duty exemption is separate from CGT. However, the Family Law Act also provides for “rollover relief” for CGT purposes for transfers between spouses or de facto partners as a result of a relationship breakdown, provided the transfer is under a court order or formal agreement. This generally means that CGT is deferred until the receiving party later sells the asset. You should always seek specific advice from a tax accountant or a lawyer specialising in tax law for CGT implications.

Q5: Are there any other costs involved in property transfers in South Australia, even with the exemption?

A: Yes, even with the stamp duty exemption, you will still incur other costs, which may include: * Legal fees for drafting the Consent Orders/BFA and handling the conveyancing process. * Court filing fees for the Consent Order application. * Land Services SA registration fees for changing ownership on the property title. * Mortgage discharge fees (if an existing mortgage is being removed). * New mortgage establishment fees (if the receiving party is taking out a new loan).

The Stamp Duty exemptions with Consent Orders in Adelaide and South Australia provides a crucial financial benefit for separating couples. By ensuring the property transfer is formally linked to a marriage or de facto relationship breakdown and executed under a Family Court Consent Order or a Binding Financial Agreement, parties can save a significant amount in transfer duty. Always seek professional legal and financial advice to manage this process correctly.

Stamp Duty Exemptions in the Canberra with Consent Orders

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A Guide to Stamp Duty Exemptions in Canberra, ACT with Consent Orders

 

In the Australian Capital Territory (ACT), similar to other states stamp duty (known as “conveyance duty” in the ACT) exemptions are available for property transfers made as part of a family law property settlement. This provides significant financial relief for separating couples for Stamp Duty Exemptions in Canberra ACT

Legislation for Stamp Duty Exemption in ACT:

The relevant legislation in the ACT that provides for this exemption is primarily the Duties Act 1999 (ACT), which works in conjunction with the Commonwealth’s Family Law Act 1975 (Cth).

Specifically, the key provisions are:

  • Duties Act 1999 (ACT):
    • This Act governs all dutiable transactions in the ACT. It contains various exemptions, and importantly, it defers to the Family Law Act for property transfers arising from relationship breakdowns. The ACT Revenue Office confirms that conveyance duty is not imposed on transfers made under the Family Law Act.
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    • While specific sections like 90 and 90WA are not directly listed in the Duties Act, the ACT Revenue Office’s guidance explicitly states that transfers made under a court order (including Consent Orders) or a Binding Financial Agreement made under the relevant parts of the Family Law Act are exempt.
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  • Family Law Act 1975 (Cth):
    • Section 90: This section of the Family Law Act empowers the Federal Circuit and Family Court of Australia (FCFCoA) to make orders altering property interests for married couples.
    • Section 90L: This section specifically exempts transactions (including property transfers) from State or Territory duties if they are executed in accordance with a court order made under Part VIII of the Family Law Act (for married couples) or a binding financial agreement made under Part VIIIA.
    • Section 90WA: This is the equivalent section for de facto couples. It exempts transactions from State or Territory duties if they are executed in accordance with a court order or a binding financial agreement made under Part VIIIAB of the Family Law Act.

In essence, the ACT’s Duties Act acknowledges and implements the stamp duty exemptions that are afforded by the Commonwealth’s Family Law Act when property is transferred between parties due to a marriage or de facto relationship breakdown and is formalised by a court order (like Consent Orders) or a binding financial agreement.

The Process for Claiming the Stamp Duty Exemptions in Canberra ACT :

Claiming the conveyance duty exemption in the ACT is typically managed through the ACT Revenue Office, often with the assistance of a legal professional (solicitor or conveyancer).

Here’s a general outline of the process:

 

  1. Obtain a Sealed Court Order (Consent Orders):
    • This is the essential starting point. The Federal Circuit and Family Court of Australia must have approved and sealed your Consent Orders. These orders must clearly specify the property being transferred, the parties involved, and that the transfer is a result of the family law property settlement.
  1. Prepare Transfer Documents:
    • For real estate, the relevant transfer document (e.g., a Memorandum of Transfer) is prepared, consistent with the requirements of the ACT Land Titles Office.
    • For other dutiable property, the appropriate transfer forms for that asset type will be used.

 

  1. Complete a Buyer Verification Declaration (BVD):
    • In the ACT, transferees (the parties receiving the property) must complete a Buyer Verification Declaration. This declaration includes details about the transaction and is where you declare your eligibility for any concessions or exemptions, including the family law exemption.

 

  1. Lodge Documents with Access Canberra (via PEXA or directly):

 

    • Property transfers in the ACT are increasingly processed electronically through platforms like PEXA (Property Exchange Australia). Your conveyancer or solicitor will use this system to lodge the transfer documents and claim the exemption.
    • If not using PEXA, documents can be lodged directly with Access Canberra (which manages land titles and revenue services in the ACT).
    • When lodging, the sealed Consent Order (or a certified copy) must be provided as proof of exemption.
  1. Assessment and Endorsement:
    • The ACT Revenue Office will assess the transaction based on the lodged documents. If satisfied that all conditions for the family law exemption are met, they will endorse the transfer as exempt from conveyance duty.

Important Note: The transfer of property must be made by the transferee in accordance with and pre-date the sealed Consent Orders. This means the Consent Order must be in place before the property transfer is effected, and the transfer must directly implement what the Consent Order specifies.

Frequently Asked Questions (FAQs):

Q1: Does the stamp duty exemption apply to all property types in the ACT?

A: Yes, it generally applies to the transfer of any “dutiable property” in the ACT, which includes real estate (land, homes, commercial properties), and potentially other assets, provided the transfer is between the parties to the marriage or de facto relationship breakdown and is effected by a court order or a binding financial agreement under the Family Law Act.

Q2: Do I need a lawyer or conveyancer to claim the Stamp Duty Exemptions in Canberra ACT ?

A: While it is legally possible to handle a property transfer yourself, we highly recommend you engage a lawyer or conveyancer experienced in ACT property law and family law settlements. They can: * Ensure the Consent Orders are properly drafted and approved by the FCFCoA. * Navigate the specific requirements of the ACT Revenue Office and Land Titles Office. * Accurately prepare and lodge all necessary documentation, including the Buyer Verification Declaration. * Identify and claim the correct exemption to avoid duty being incorrectly charged.

Q3: What if we have an informal agreement without Consent Orders? Will we still get the exemption?

A: No. Informal agreements, even if amicable, will not qualify for the conveyance duty exemption. The transfer must be formally made by a legally binding court order (Consent Order) or a Binding Financial Agreement made under the Family Law Act. This is one of the primary financial benefits of formalising your property settlement.

Q4: Does the exemption apply to Capital Gains Tax (CGT) in the ACT?

A: Conveyance duty is an ACT (state/territory) tax, while Capital Gains Tax (CGT) is a federal tax. The conveyance duty exemption is separate from CGT. However, the Family Law Act also provides for “rollover relief” for CGT purposes for transfers between spouses or de facto partners as a result of a relationship breakdown, provided the transfer is under a court order or formal agreement. This generally means that CGT is deferred until the asset is later disposed of by the receiving party. You should seek specific advice from a tax accountant or a lawyer specialising in tax law for CGT implications.

Q5: Are there any specific conditions for the property to be eligible for Stamp Duty Exemptions in Canberra ACT? A: The property must be clearly identified in the Consent Orders, and the transfer must be directly linked to the property settlement arising from the relationship breakdown between the parties. The orders should explicitly state who the property is being transferred to.

Q6: Are there any other costs involved in property transfers in the ACT, even with the exemption?

A: Yes, even with the conveyance duty exemption, you will still incur other costs, which may include: * Legal fees for drafting the Consent Orders and handling the conveyancing process. * Court filing fees for the Consent Order application. * Titles Office registration fees for changing ownership on the property title. * Mortgage discharge fees (if an existing mortgage is being removed). * New mortgage establishment fees (if the receiving party is taking out a new loan).

The conveyance duty exemption in the ACT provides a significant financial advantage for separating couples. By obtaining Consent Orders and following the correct procedures for the transfer, parties can save a substantial amount in transfer duty.

 

Stamp Duty Exemptions in Victoria with Consent Orders

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A Guide to Stamp Duty Exemptions in Victoria with Consent Orders.

In Melbourne, Victoria, a significant financial advantage exists for separating couples undertaking a property settlement: the exemption from land transfer duty (commonly known as stamp duty).

This exemption substantially reduces the financial burden when real estate or other dutiable property is transferred between former partners as part of their family law settlement.

Legislation for Stamp Duty Exemption in Victoria:

The relevant legislation in Victoria that provides for this exemption is primarily the Duties Act 2000 (Vic), which works in conjunction with the Commonwealth’s Family Law Act 1975 (Cth).

Specifically, the key provisions are:

  • Duties Act 2000 (Vic):
    • Section 44(1): This is the primary section that provides the exemption. It states that no duty is chargeable on a transfer of dutiable property if it is made solely because of the breakdown of a marriage or domestic relationship, and where the transferor(s) and transferee(s) are parties to that relationship, and no other person takes an interest in the property.

https://www.sro.vic.gov.au/evidentiary/breakdown-marriage-and-domestic-relationships-declaration-trust

    • Section 44(3): This extends the exemption to transfers where the transferor is a corporation, provided certain conditions regarding the parties’ interests in the corporation are met.
    • The Victorian State Revenue Office (SRO) provides clear guidance that this exemption applies to transfers between spouses or domestic partners (including de facto relationships) resulting from a relationship breakdown.
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  •  Family Law Act 1975 (Cth):
    • While the Victorian Act directly provides the exemption, it’s crucial to understand that the property transfer should be undertaken in accordance with a legally recognised family law process, such as:
      • A court order made under Part VIII (for married couples) or Part VIIIAB (for de facto couples) of the Family Law Act. This includes Consent Orders.
      • A Binding Financial Agreement (BFA) made under Part VIIIA (for married couples) or Part VIIIAB (for de facto couples) of the Family Law Act.
    • Sections 90L (for married couples) and 90WA (for de facto couples) of the Family Law Act specifically state that transactions executed in accordance with a court order or a financial agreement under those parts are exempt from State or Territory duties. Victoria’s Duties Act aligns with this Commonwealth provision.

 

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In essence, if a property transfer in Victoria is a direct consequence of a marriage or domestic relationship breakdown and is formalised by a Family Court Consent Order or a Binding Financial Agreement, it will generally be exempt from land transfer duty under Section 44(1) of the Duties Act 2000 (Vic).

The Process for Claiming the Stamp Duty Exemption in Victoria:

Claiming the land transfer duty exemption in Victoria is typically managed through the State Revenue Office (SRO) Victoria’s Duties Online system, usually by a legal professional (solicitor or conveyancer).

Here’s a general outline of the process:

  1. Obtain a Sealed Court Order (Consent Orders) or a Binding Financial Agreement (BFA):
    • This is the fundamental requirement. The FCFCoA must have approved and sealed your Consent Orders, or you must have a valid Binding Financial Agreement. These documents must clearly specify the property being transferred, the parties involved and confirm that the transfer is part of the family law property settlement.
  1. Prepare Transfer Documents:
    • For real estate, a Transfer of Land document (from Land Use Victoria) is prepared.
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    • For other dutiable property, the appropriate transfer forms for that asset type will be used.
  1. Complete a Digital Duties Form:
    • As of October 2018, the SRO requires the use of the Digital Duties Form for all dutiable transactions, regardless of the contract or transfer date.
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    • This online form will require you to select the appropriate exemption (e.g., “Breakdown of Relationship transfer between spouses/domestic partners” or similar category under Section 44 of the Duties Act).
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    • You will need to provide details of the parties, the property, and the basis for the exemption (i.e., the family law breakdown).
  1. Lodge Documents via Duties Online (Preferred Method):
    • Most property transfers in Victoria are now processed electronically through platforms integrated with the SRO’s Duties Online system. Your conveyancer or solicitor will use this system to lodge the transfer documents and claim the exemption.
    • The sealed Consent Order or a certified copy of the Binding Financial Agreement must be provided as supporting evidence.
  1. Assessment and Endorsement:
    • The State Revenue Office will assess the transaction based on the lodged documents and the information provided in the Digital Duties Form.
    • If satisfied that all conditions for the family law exemption are met, the SRO will endorse the transfer as exempt from duty.
  1. Record Keeping:
    • It is vital to keep thorough records for at least five years, including:
      • The original sealed Consent Order or a certified copy of the Binding Financial Agreement.
      • The completed Digital Duties Form.
      • The endorsed (stamped) Transfer of Land document.
      • Any correspondence from the SRO.

Stamp Duty exemptions Crucial Condition

: The transfer of property must be made solely because of the breakdown of a marriage or domestic relationship and must be in accordance with the terms of the sealed Consent Order or Binding Financial Agreement. The transfer must also be between the parties to that relationship, and no other person should be taking an interest in the property as part of that exempt transfer.

Frequently Asked Questions (FAQs):

Q1: Does this exemption apply to all property types in Victoria?

A: Yes, it generally applies to the transfer of any “dutiable property” in Victoria, which includes real estate (residential, commercial, industrial), and other dutiable assets, provided the transfer meets the criteria of being solely due to a marriage or domestic relationship breakdown and is between the former partners (or in limited cases, their trustee or a corporation as defined by the Act).

Q2: Do I need a lawyer or conveyancer to claim the exemption in Victoria? A: While it’s possible for individuals to register and lodge documents electronically with the SRO, it is highly recommended to engage a lawyer or conveyancer experienced in Victorian property law and family law settlements. They can:

* Ensure the Consent Orders ( both application and Minute of Order) are properly drafted and approved, or the BFA is validly executed.

* Navigate the specific requirements of the SRO and Land Use Victoria.

* Accurately complete the Digital Duties Form and lodge all necessary documentation, significantly reducing the risk of errors or delays.

Q3: What if we have an informal agreement without Consent Orders or a BFA? Will we still get the exemption?

A: No. Informal or verbal agreements, even if amicable, will generally not qualify for the land transfer duty exemption under Section 44 of the Duties Act. The transfer must be formally made in accordance with a legally binding court order (Consent Orders) or a Binding Financial Agreement made under the Family Law Act. This is a key reason why formalising your property settlement is so beneficial.

Q4: Does the exemption apply to Capital Gains Tax (CGT) in Victoria?

A: No, land transfer duty is a Victorian (state) tax, while Capital Gains Tax (CGT) is a federal tax. The transfer duty exemption is separate from CGT. However, the Family Law Act also provides for “rollover relief” for CGT purposes for transfers between spouses or de facto partners as a result of a relationship breakdown, provided the transfer is under a court order or formal agreement. This generally means that CGT is deferred until the receiving party later sells the asset. You should always seek specific advice from a tax accountant or a lawyer specialising in tax law for CGT implications.

Q5: Are there any specific conditions for the property to be eligible?

A: The property must be clearly identified in the Consent Orders or BFA, and the transfer must be solely for the purpose of adjusting property interests due to the relationship breakdown. The transfer must be between the parties to the relationship, or in very limited circumstances, to a trustee for the benefit of a party or a child of the relationship as explicitly ordered.

Q6: Are there any other costs involved in property transfers in Victoria, even with the exemption?

A: Yes, even with the land transfer duty exemption, you will still incur other costs, which may include: * Legal fees for drafting the Consent Orders/BFA and handling the conveyancing process. * Court filing fees for the Consent Order application. * Land Use Victoria registration fees for changing ownership on the property title. * Mortgage discharge fees (if an existing mortgage is being removed). * New mortgage establishment fees (if the receiving party is taking out a new loan).

The land transfer duty exemption in Victoria provides a substantial financial advantage for separating couples. By obtaining legally binding Consent Orders or a Binding Financial Agreement and following the correct procedures, parties can save a significant amount in transfer duty.

Stamp Duty exemptions in NSW with a Consent Order

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Stamp Duty Exemption with Consent Orders in NSW: A Comprehensive Guide

 

 

  1. Introduction: Transfer Duty (Stamp Duty) and Family Law Property Transfers in NSW
  • Transfer Duty (Stamp Duty): A state-level tax in NSW on property transfers.
  • General Applicability: Usually applies to various property types (residential, investment, land, businesses involving land), even in family law settlements.
  • Significance: A significant financial consideration in property transactions, including those arising from relationship breakdowns.

 

  1. The Role of Consent Orders in Family Law Property Settlements
  • Definition: Legally binding agreements approved by a court (Federal Circuit and Family Court of Australia or equivalent).
  • Purpose: Formalise the terms of property division agreed upon by divorcing parties.
  • Legal Weight: Carry the same enforceability as court-ordered decisions after a full hearing.
  • Importance: Provide legal certainty and finality to the division of assets.

 

  1. Legislative Basis for Stamp Duty Exemptions
  • Key Legislation:
  • Important Note: Exemptions are not automatic. They require:
    • Approval of the property settlement.
    • Formalization through consent orders approved by the court or a Binding Financial Agreement (BFA) that complies with the Family Law Act.
  • Legislative Intention: Specific sections of the Duties Act 1997 (NSW) demonstrate a clear intention to allow stamp duty exemptions for individuals undergoing a property settlement.

 

  1. Eligibility Criteria for Stamp Duty Exemption
  • General Requirement: Specific criteria must be met for a property transfer under consent orders to qualify for a stamp duty exemption in NSW. These criteria depend on the relationship type and transfer timing.
    • 4.3 Transfers Following a Relationship Breakdown (Marriage, De Facto, Domestic)
      • Applicability: Exemptions are available for transfers of matrimonial or relationship property between former partners after a marriage, de facto, or domestic relationship breakdown.
      • Property Types: Applies not only to the former family home but also to other assets in the shared property pool (investment properties, financial assets).
      • De Facto/Domestic Relationships: The Chief Commissioner of Revenue NSW has discretion to accept an agreement as sufficient evidence that the transfer is for dividing relationship property due to the breakdown.
    • 4.4 Transfers to Children or Trustees for Children
      • Applicability: The exemption applies when property is transferred from one or both former partners to their child/children (directly or to a trustee).
      • Rationale: Focuses on the well-being of children affected by relationship breakdowns, allowing property transfer for their benefit without stamp duty.

 

  1. Types of Property Covered by the Exemption
  • Broad Coverage: The stamp duty exemptions apply to a wide range of property types.
  • Common Scenario: Transfer of the matrimonial home (principal place of residence).
  • Other Covered Assets:
    • Investment properties (part of the shared asset pool).
    • Parcels of land.
    • Vehicles.
    • Shares and other financial instruments.
  • Key Principle: The broad definition of “matrimonial property” and “relationship property” ensures that diverse assets acquired during the relationship can be transferred without stamp duty, provided the transfer is a direct result of the relationship breakdown and formalized through appropriate legal channels (consent orders or BFA).

 

  1. The Application Process for Stamp Duty Exemption
  • Process: Individuals must follow a specific application process with Revenue NSW.
    1. Complete the Application Form: Use the designated form: ‘Application for Exemption or Refund – Break-up of a Marriage or De facto Relationship’.
    2. Gather Supporting Documents:
      • Certified copy of the sealed court order (consent orders) or the original Binding Financial Agreement.
      • Proof of identity for each party.
      • Original executed transfer document or certified copy (if eConveyancing was used).
    1. Lodge the Application: Submit the completed application and all documents to Revenue NSW electronically (often through a solicitor/conveyancer registered with PEXA) or via postal mail.
    2. Refund Eligibility: If stamp duty was initially paid, and an exemption is later determined to apply, the applicant may be eligible for a refund.

Key Takeaways:

  • Consent Orders or BFA are Crucial: You must formalize the property settlement through consent orders or a Binding Financial Agreement (BFA) to be eligible for the stamp duty exemption.
  • Broad Property Coverage: The exemption applies to a wide range of assets, not just the family home.
  • Application Process: Follow the specific application process with Revenue NSW and provide all required documentation.
  • Seek Professional Advice: Given the complexities, it’s highly recommended to consult with a solicitor initially and then a conveyancer. They can guide you through the process of drafting the agreement and applying for the exemption.

This guide provides a general overview and should not be considered legal advice. You should always consult with specialist legal and financial professionals.

Application for Consent Orders

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Application for Consent Orders – Everything you need to know!

The “Application for Consent Orders” is a specific form used in the Federal Circuit and Family Court of Australia (FCFCoA) to formally request the Court to approve an agreement reached by separating parties (married or de facto) and make it into a legally binding court order.

It’s one of two crucial documents required for consent orders (the other being the Minute of Consent Orders, which contains the actual proposed orders themselves). The Application form provides the Court with the necessary background information, particularly the financial details of the parties, so the Registrar can assess whether the proposed orders are “just and equitable” (for property/financial matters) or “in the best interests of the child” (for parenting matters).

General Overview of Sections in an Application for Consent Orders:

The layout and numbering of sections of an application for Consent Orders might vary slightly over time as forms are updated, but the core information required remains consistent. The form is typically divided into several parts, designed to gather comprehensive information about the parties, their relationship, children (if any), and most importantly, their financial circumstances.

Here’s a breakdown of the common sections you would find in an Application for Consent Orders (referencing the Federal Circuit and Family Court of Australia’s current forms):

Part A: About the Parties

  • Applicant’s Details: Full name, date of birth, occupation, contact address (address for service), and details of any legal representation.
  • Respondent’s Details: Similar information for the other party.

Part B: About the Relationship

  • Marriage Details: If married, date and place of marriage, and date of final separation.
  • De Facto Relationship Details: If de facto, date relationship commenced, date of final separation, and details required to establish jurisdiction (e.g., length of relationship, children, contribution to property).
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  • Divorce Information: If divorced, date and place of divorce, and date the divorce order became final (crucial for property settlement time limits).

Part C: Other Cases and Orders

  • Details of any other existing court cases or orders that involve the parties or children. This helps the Court understand the complete legal history.

Part D: About the Children (if applicable)

  • This section is mandatory even if you are only seeking financial orders, as the Court needs to understand if there are any children under 18.
  • Details for each child under 18: full name, DOB, gender, and their relationship to each party.
  • Current living arrangements and primary caregiver.
  • If parenting orders are sought:
    • Information about family violence, abuse, or risk concerns (a mandatory notice must also be filed).
    • Reasons why the proposed parenting orders are in the child’s best interests, addressing specific considerations like equal or substantial and significant time, if applicable.

Part E: Orders Sought (Summary)

  • This section confirms what type of orders are being sought (e.g., parenting, property, spousal maintenance, or a combination). It usually refers to the accompanying “Minute of Consent Orders” which contains the full text of the proposed orders.

Part F: Financial Statement / Financial Information (Crucial for Property Orders)

  • This is one of the most critical sections for property settlement consent orders, as it outlines the full and frank financial disclosure of both parties. The Registrar heavily relies on this information to assess the “just and equitable” nature of the proposed property division.
  • Assets: Detailed breakdown and current values of all assets, including:
    • Real Estate (address, ownership, estimated value, mortgage details).
  •  
    • Bank Accounts (institution, account number, balance).
    • Vehicles (make, model, year, estimated value, loan details).
    • Superannuation (fund name, member number, current value, type of interest).
    • Shares, investments, trusts, businesses.
    • Jewellery, furniture, household items (often a broad estimate).
    • Any other significant assets.
  • Liabilities: Detailed breakdown of all debts, including:
    • Mortgages.
  •  
    • Credit Card Debts.
    • Personal Loans.
    • Car Loans.
    • Tax Debts.
    • Any other significant liabilities.
  • Financial Resources: Details of any financial resources not included in the asset list that could affect a party’s future needs (e.g., an interest in a trust they don’t control, potential inheritance).
  • Income: Information on gross and net income from all sources (employment, Centrelink, and investments).
  • Expenses: A summary of regular living expenses.
  • Source of Funds: Information about how assets were acquired and contributions made to the relationship (e.g., initial contributions, inheritances, gifts).

Part G: Relevant Circumstances for Property/Maintenance (Section 75(2) and 90SF Factors)

  • This section requires parties to provide information  about the specific circumstances that support the proposed property division or maintenance order. It addresses the “future needs” factors (e.g., age, health, earning capacity, care of children, ability to gain employment, responsibilities  to support others, standard of living, duration of relationship, any child support paid or received). This helps the Registrar understand why the proposed division is considered “just and equitable” given each party’s circumstances.

Part H: Other Orders (e.g., binding third parties)

  • Details if any orders are sought that would bind a third party (e.g., a superannuation fund, a company, a trustee). If so, the third party must also consent and provide relevant information.

Part I, J, K, L, M, N (or similar): Statements of Truth and Legal Advice

  • Statements of Truth: The Applicant and Respondent must sign a “Statement of Truth” or “Affidavit” declaring that the information provided in the application is true and accurate. This declaration is very  serious and underscores the duty of full and frank disclosure.
  • Statement of Independent Legal Advice: If parties have received legal advice, their lawyers will often sign a section confirming they have advised their respective clients about the effects of the orders and the agreement. While not strictly mandatory for the Court to approve consent orders, it is highly recommended and often required for a Binding Financial Agreement.

Attachments:

  • The application also requires various attachments, such as:
    • Minute of Consent Orders (draft orders): This is the actual agreement you want the Court to formalise.
    • Marriage Certificate (if applicable).
    • Divorce Order (if applicable).
    • Birth Certificates of children (if parenting orders are sought).
    • Evidence of superannuation value (e.g., latest member statement, Superannuation Information Form).
    • Valuation reports for property or businesses (if applicable).
    • Any existing court orders or agreements that are being varied or discharged must be attached.

Importance of the Application Form:

The Application for Consent Orders is an important document. It is the primary document that provides the Judicial Registrar with all the information they need to assess the fairness and legality of your proposed Consent Orders. If you provide incomplete or inaccurate information in this form, it will be requisitioned or rejected by the Court.