About Rachel Stubbs

Rachel Stubbs is the Principal of Kate Austin Family Lawyers, where she leads a practice dedicated to providing a more compassionate, efficient, and cost-effective alternative to the traditional adversarial legal system. With over 25 years of experience in family law, Rachel has transitioned her focus from courtroom litigation to specializing in Consent Orders and amicable property settlements.

Professional Background & Philosophy
Rachel’s career is defined by a commitment to minimizing the emotional and financial toll of separation, particularly on children. Before establishing her practice in Brisbane, she founded and led a successful multi-office firm in New South Wales. Despite that success, she became a vocal critic of the traditional family law system, believing its "winner-take-all" nature often encourages bitterness rather than resolution.

Specialist Accreditation (Family Law): Law Society of NSW (2007) and Law Society of QLD (2017).

Independent Children’s Lawyer (ICL): Trained through the National Training Program to represent the best interests of children in complex cases.

Graduate Diploma of Family Dispute Resolution: Focused on non-litigious mediation and resolution strategies.

High Court Registration: Registered to practice in any Federal Court in Australia.

Personal Interests
Outside of the office, Rachel is an accomplished endurance athlete. She is a competitive triathlete and cyclist, regularly participating in IRONMAN 70.3 events. Her determination in the legal field is mirrored in her personal life; she has long-held aspirations to cycle across America, fueled by an adventurous spirit and a drive for personal growth.

Entries by Rachel Stubbs

What can be included in a Consent Order

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What can be included in Consent Orders?

Finalising a relationship is rarely easy, but reaching an agreement with your former partner is a major obstacle already cleared. The next step is making that agreement legally binding. At Kate Austin Law, we specialise in turning these agreements into Consent Orders—a formal court order that gives you and your family finality and protection.
But what exactly can you put in these documents? Whether you are looking at parenting, property, or superannuation, here is a breakdown of what a Consent Order can cover. so What can be included in Consent Orders
 
 

 

1. Parenting Consent Orders

Parenting orders are designed to provide a defined path for your children’s upbringing. Under the Family Law Act 1975 (Cth), specifically Section 60CC, the court’s primary consideration is always the “best interests of the child.”
Standard Inclusions:
 
  1. Living Arrangements: Where the child lives and how much time they spend with each parent.
  2. Parental Responsibility: Who makes the major long-term decisions (education, health, religion). Following the May 2024 amendments, the “presumption” of equal responsibility has been removed, allowing orders to be more designed to individual family safety and needs.
  3. Communication: How and when the child communicates with the parent they aren’t currently with (FaceTime, phone calls).
  4. Changeovers: The specific time and location for dropping off and picking up the children.
  5. Special Days: Complete schedules for Christmas, birthdays, Mother’s/Father’s Day, and school holidays.

 

2. Property Settlement

A property settlement legally severs the financial ties between you and your ex-partner. This is governed by Section 79 (for married couples) or Section 90SM (for de facto couples) of the Family Law Act.
Standard Inclusions:
  1. Real Estate:  An order for the sale of a home or the transfer of a title from joint names to one person.
  2. Personal Property: The division of cars, furniture, and household contents.
  3. Cash and Investments: How your bank accounts, shares, and business interests will be divided.
  4. Debts and Liabilities: Clearly stating who is responsible for the mortgage, credit cards, or personal loans.

 

 

3. Superannuation Splitting

Superannuation is treated as a different type of property under the Family Law (Superannuation) Regulations 2025. You can choose to “split” it or “offset” it against other assets.
 
  1. The Split: A specific dollar amount or percentage is transferred from one partner’s fund to the other’s.
  2. Procedural Fairness: Before the court makes this order, the Trustee of the super fund must be notified and given a chance to object—a technical step we handle for you.

 

The Common vs. The Unusual

School holiday rotations
Pet Custody: Who the family dog lives with and “visitation” rights.
Division of the family home
Extracurricular Limits: Capping the number of sports a child can do.
Payment of the mortgage
Overseas Travel: Restrictions on which countries a child can visit.
Non-denigration clauses
First Right of Refusal: If a parent can’t watch the kids, they must ask the other parent before a babysitter.

 

What Cannot Be Included?

It is a common misconception that Consent Orders cover everything. However, the following are generally excluded:
  • Child Support: This is managed by Services Australia (Child Support) under a different Act. While you can include “notations” about it, the Court generally won’t make orders regarding periodic child support payments.
  • Surrogacy Arrangements: Unless a parenting order has already been made, these usually require a different legal path.
  • Illegal or Unenforceable Acts: You cannot include orders that contradict public policy or are impossible to enforce what a Consent Order can cover.

 

 

Why Use a Specialist Family Lawyer?

While “DIY” kits exist, they almost always lead to “requisitions” (the Court rejecting your documents because they aren’t drafted correctly).
  1. Correct drafting : We ensure your orders are “Just and Equitable” (the legal standard required for approval).
  2. Tax Benefits: Properly drafted Consent Orders can exempt you from Stamp Duty on property transfers and provide Capital Gains Tax (CGT) rollover relief.
  3. Speed: At Kate Austin Law, we offer a 24-hour turnaround on drafting once we have your details.
  4. Finality: We ensure there are no missed elements that could allow your former partner to “come back for a second bite” years later.

Ready to formalise your agreement?

[Book a free 15-minute clarity call with Rachel or Brendan today.]

FAQ - What can be included in a consent Order

Consent Orders lay out exactly what happens to every piece of property you own. For example, if you decide to transfer full ownership of a $850,000 house in suburban Brisbane to one partner while refinancing the mortgage, the orders set deadlines for the title transfer and loan release. Alternatively, if you agree to sell an investment unit in Melbourne, the orders state who pays the listing fees, how you select an estate agent, and how you split the final sale proceeds after clearing the mortgage.
2. Can we include superannuation splits and cash accounts in the same agreement?
Yes, Consent Orders pool all financial assets together so you can divide them cleanly at the same time. You can specify exact dollar amounts or percentages to transfer between accounts—for instance, moving $40,000 from an AustralianSuper accumulation account into your ex-partner’s fund. You also cover joint everyday bank accounts, term deposits, share portfolios, and even crypto holdings. The orders explicitly state who keeps which bank account and set dates for transferring cash balances between parties.
Consent Orders handle liabilities just as thoroughly as physical assets. If you owe $15,000 on a joint credit card or have a $30,000 car loan on a shared vehicle, the orders state which partner is responsible for paying off or refinancing that debt. They also require the responsible partner to indemnify the other, protecting you if your ex stops making payments. Clearly laying out every debt prevents creditors from pursuing the wrong person down the track.
When you include parenting terms, your orders turn your agreed custody schedule into legally binding rules. You can detail day-to-day living arrangements, such as  having your children live with one parent during school weeks and spend alternate weekends and Thursday nights with the other. The orders also cover school holiday splits, Christmas changeover times, passport applications, international travel approvals, and how you make major long-term decisions about health and schooling.
5. How do we address business interests, vehicles, and personal belongings?
Your agreement can specify who retains items such as company shares, family business assets, or sole trader operations, including indemnities to protect the outgoing partner from commercial liabilities in the future, such as taxation liabilities. You can also list physical possessions—assigning ownership of cars, caravans, furniture, or artwork. For instance, the orders can state that one partner keeps the family SUV while the other retains the work ute and boat, and set out clear handover dates for registration transfers.

Stamp Duty Exemptions with Consent Orders in Adelaide

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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:
      • 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:

 

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.

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.

 

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.

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.

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.

 

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) Stamp Duty Exemptions in Canberra 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.
    •  
    • 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.
    •  
  • 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 the 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:

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.

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.

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.

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.

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 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 Exemption.

 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 Stamp Duty Exemptions in Canberra provide 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.

FAQ Stamp duty exemptions in the ACT

In the Australian Capital Territory, transferring a home or land during a separation normally triggers conveyance duty (stamp duty) assessed by the ACT Revenue Office. However, under Section 90L (for married couples) and Section 90WA (for de facto couples) of the Family Law Act 1975 (Cth), property transfers resulting directly from a relationship breakdown are completely exempt from conveyance duty when backed by court orders. For example, if you buy out your ex-partner’s share of a $950,000 house in Belconnen or Kingston, court-sealed Consent Orders can reduce your ACT conveyance duty bill from tens of thousands of dollars to zero. Read the full guide at Stamp Duty Exemptions in the ACT.
2. Does the ACT conveyance duty exemption apply to investment and commercial properties?
Yes, the family law conveyance duty exemption covers all forms of real estate in the ACT, not just your primary family residence. In your Consent Orders, you can transfer investment apartments, commercial premises, holiday units, or vacant residential blocks without paying stamp duty. For instance, if your property settlement states a rental townhouse in Gungahlin to one partner and a commercial office space in Braddon to the other, both qualify for a full tax exemption under your sealed Consent Orders.
3. Will the ACT Revenue Office accept a private, written agreement for a stamp duty exemption?
No, the ACT Revenue Office strictly requires a legally binding court document, such as Consent Orders, to grant a transfer duty exemption. Other agreements such as private contracts, verbal promises, or signed statutory declarations will not satisfy territorial tax rules; they will not be granted a stamp duty exemption. You must provide court-sealed Consent Orders or a certified Binding Financial Agreement executed under the Family Law Act 1975. Registering a title transfer through Access Canberra without formal court orders forces officials to charge full duty on the unencumbered market value of the property.
4. How do conveyancers process a duty-exempt property transfer in Canberra?
When handling a property transfer in the ACT, your conveyancer or solicitor will submit a “Buyer Verification Declaration” to the ACT Revenue Office. They will also attach certified copies of your court-sealed Consent Orders to verify that the transfer directly fulfils a family law property settlement. The revenue office assesses the documentation and formally endorses the transfer as exempt, allowing your conveyancer to complete the property settlement smoothly through PEXA or Access Canberra without out-of-pocket tax costs. Explore ACT lodging procedures at Stamp Duty Exemptions in the ACT.
5. What crucial timing rules apply when claiming the ACT family law exemption?
To secure the exemption, your court-sealed Consent Orders must be finalised before you execute and lodge the property transfer documents. Furthermore, you must obtain your court orders within the statutory family law deadlines—generally 12 months from a final divorce order for married couples, or two years from the separation date for de facto couples. Securing your court orders early prevents missed legal deadlines and helps speed up exemption process with the ACT Revenue Office. Check out ACT timing requirements at Stamp Duty Exemptions in the ACT.
 

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.
  •  
  •  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.
  •  

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.

Prepare Transfer Documents:

    • For real estate, a Transfer of Land document (from Land Use Victoria) is prepared.
  1.  
    • For other dutiable property, the appropriate transfer forms for that asset type will be used.

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.
  1.  
    • 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).
  1.  
    • You will need to provide details of the parties, the property, and the basis for the exemption (i.e., the family law breakdown).

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.

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.

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.

FAQ about Stamp Duty exemption in Melbourne and Victoria

When transferring property during a separation in Victoria, the State Revenue Office (SRO) normally charges substantial land transfer duty (stamp duty). However, Section 44 of the Duties Act 2000 (Vic) provides a full exemption for property transfers made solely because of a breakdown of a marriage or domestic relationship. To claim this exemption, you must formalise your settlement through court-sealed Consent Orders or a Binding Financial Agreement under the Family Law Act 1975. For example, if you buy out your ex-partner’s share of a $900,000 home in Richmond or Geelong, having sealed Consent Orders saves you tens of thousands of dollars in transfer duty. Read the full details at Stamp Duty Exemptions in Victoria.
2. Does the relationship breakdown exemption in Victoria cover investment properties?
Yes, it does. While standard spousal transfers under Section 43, which only cover a main residence, the breakdown exemption under Section 44 applies to all other types of real estate. You can transfer your investment apartments, commercial premises, holiday homes, or vacant land without paying land transfer duty. If your Consent Orders award an investment property in Ballarat to one partner and the main home in Bendigo to the other, both transactions qualify for a zero-duty rating under Victorian law. Discover how different property types qualify at Stamp Duty Exemptions in Victoria.
3. Will the Victorian State Revenue Office accept an informal agreement for duty exemption?
No, the Victorian SRO will not grant a duty exemption based on a private contract, handshake deal, or statutory declaration. SRO compliance guidelines strictly require an official, legally recognised instrument—specifically court-sealed Consent Orders or a certified Binding Financial Agreement. If you attempt to transfer title through Land Use Victoria without these formal court documents, the conveyancing network automatically assesses full transfer duty rates on the market value of the share transferred. Learn why formal court orders are essential at Stamp Duty Exemptions in Victoria.
4. How do conveyancers process a duty-exempt property transfer in Victoria?
Your conveyancer will manage the exemption digitally through the State Revenue Office’s Duties Online system using the Digital Duties Form. When they are lodging the transaction, they select the exemption under Section 44 of the Duties Act 2000 (Vic) and upload certified copies of your court-sealed Consent Orders. Once these documents are certified, the calculated land transfer duty drops to NIL, allowing your conveyancer to complete the title change smoothly via the PEXA workspace. Explore step-by-step conveyancing requirements for stamp duty exemptions in Victoria.
5. What evidence must we provide to satisfy the Victorian SRO for a relationship breakdown exemption?
To meet the State Revenue Office requirements, your conveyancer will lodge a completed Digital Duties Form along with a certified copy of your sealed Consent Orders. The sealed orders must explicitly detail all teh following: the property address, title reference numbers, and identify the specific partner transferring or receiving the interest. Having a specialist lawyer draft these specific transfer clauses ensures your documentation passes SRO verification without audit requisitions or unexpected duty demands.

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Stamp Duty exemptions in NSW with a Consent Order

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

 

1. Introduction: Transfer Duty (Stamp Duty) and Family Law Property Transfers in NSW

Stamp Duty exemption (transfer 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 formalise 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.

FAQ about stamp duty exemptions with Consent Orders in NSW

Transferring a home or investment property during a separation in New South Wales normally triggers substantial transfer duty (stamp duty) charged by Revenue NSW. Under Section 68 of the Duties Act 1997 (NSW), property transfers resulting directly from a relationship breakdown are fully exempt from transfer duty if you formalise the agreement through court-sealed Consent Orders or a Binding Financial Agreement. For example, if you buy out your former partner’s half-share in a $1.2 million house in Parramatta or Wollongong, sealed Consent Orders can waive tens of thousands of dollars in NSW transfer duty. Read more about securing NSW tax exemptions at Stamp Duty Exemptions in NSW.
2. Does the NSW stamp duty exemption apply to investment properties and land?
Yes, the exemption includes all real estate other than your primary residence, and covers all marital real estate or relationship property across NSW. Properties owned in other jurisdictions will come under their respective legislation.  Under Section 68 and Section 163B of the Duties Act 1997 (NSW), you can transfer investment units, vacant land, commercial properties, and even registered motor vehicles without paying transfer duty. If your property settlement allocates a rental unit in Newcastle to one partner and a holiday house on the Central Coast to the other, both title transfers qualify for full duty exemptions under your Consent Orders.
3. Will Revenue NSW accept an informal written agreement for a stamp duty exemption?
No, Revenue NSW will not accept a private written agreement, statutory declaration, or handshake deal for a transfer duty exemption. The Chief Commissioner of State Revenue strictly requires a formal, legally recognised document—specifically court-stamped Consent Orders or a certified Binding Financial Agreement under the Family Law Act 1975. Attempting to transfer a property title at Land NSW using an informal arrangement forces conveyancers to levy full ad valorem duty rates. Discover why formal court orders are mandatory for stamp duty exemptions in NSW.
4. Can I claim a refund if I already paid stamp duty on a property transfer?
Yes, if you previously paid stamp duty on a property transfer after a separation, you can make an application to Revenue NSW for a refund of the duty paid through your conveyancer. To qualify for a refund, you must provide your sealed Consent Orders after the initial transfer and lodge form called an “Application for Exemption or Refund – Break-up of a Marriage or De facto Relationship” within five years of paying the duty. Revenue NSW will process the refund once you supply certified copies of your court orders and transfer documents. Your conveyancer will assist with this process.
5. How do conveyancers process a duty-exempt property transfer in NSW?
When you transfer a property through the PEXA electronic conveyancing network, your conveyancer flags the transaction under Section 68 of the Duties Act 1997 (NSW). They upload a certified copy of your sealed Consent Orders alongside a completed Revenue NSW Purchaser/Transferee Declaration form. This process then reduces the payable transfer duty to NIL dollars at the time of settlement, allowing  title registration at Land NSW to transfer without duty.

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).
  •  
  • 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.

FAQ about the Application for Consent Orders

The Application for Consent Orders is the primary background document you submit to the Federal Circuit and Family Court of Australia (FCFCOA) to request court approval for a private settlement. While the attached Minute of Consent Orders outlines the exact, enforceable terms you want the court to make into law, the Application form provides the detailed factual context. It lays out both parties’ personal details, relationship history, children’s living arrangements, and a full financial breakdown. A court registrar uses this  information to evaluate whether your proposed agreement is fair . Learn more about setting up your application at Application for Consent Orders.
2. Why does the court require such a detailed financial disclosure section in the Application?
The FCFCOA requires “full and frank financial disclosure” in the Application for Consent Orders document form to ensure your proposed property split meets the legal “just and equitable” standard under the Family Law Act 1975. In this section, both partners must declare all current assets, debts, current superannuation balances, and any other financial resources, along with historical contributions and future living needs. This is done at their current values – not at the date of separation. The registrar relies directly on these figures to verify that neither partner takes unfair advantage of the other. Hiding assets or misrepresenting financial values invalidates court approval. All assets must be disclosed regardless of whether they are being retained, transferred or sold.
No, applying for Consent Orders is a purely administrative out-of-court process. Once you complete, sign, and upload your Application form and Minute of Orders through the Commonwealth Courts Portal, a judicial registrar reviews your paperwork in chambers. You do not need to attend a physical court hearing or face cross-examination. If the registrar confirms your financial split is equitable—and any parenting terms serve the child’s best interests—they seal the orders electronically and upload them to your portal account. Check out the out-of-court approval process at Application for Consent Orders.

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Along with the Application form itself, you must attach several mandatory supporting documents before uploading your file to the court portal. These include the drafted Minute of Consent Orders containing the exact proposed orders. If you are splitting superannuation, you must include evidence of the fund’s value and a formal procedural fairness letter from the super fund trustee confirming no objection to the split. If you are seeking parenting orders, you must attach the children’s birth certificates. Review the full checklist of supporting attachments at Application for Consent Orders.

Stamp Duty Exemptions with Consent Orders in Queensland

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Stamp Duty Exemptions with Consent Orders
in Queensland

Stamp Duty Exemptions with Consent Orders in Queensland

Queensland Transfer Duty (Stamp Duty) Exemption: Family Law

Queensland Stamp Duty Exemption is in the Duties Act 2001 (QLD) works in tandem with the Commonwealth Family Law Act 1975 to provide a 100% exemption from transfer duty (stamp duty) when property is redistributed following the breakdown of a relationship.

This exemption applies to real estate (the family home, investment properties, or vacant land), motor vehicles, and other “dutiable property.”

1. The Legal Framework

  • Married Couples: Exemptions are granted under Section 90 (for Court Orders) and Section 90L (for Financial Agreements) of the Family Law Act 1975.

  • De Facto Couples: Exemptions are granted under Section 90WA of the Family Law Act 1975.

  • State Authority: The Queensland Revenue Office (QRO) implements these federal exemptions via Section 424 (for matrimonial instruments) and related self-assessment toolkits within the Duties Act 2001.

2. Mandatory Requirements for Exemption

To successfully claim the exemption in Queensland, the following criteria must be met:

  • The Document: The transfer must be made pursuant to a sealed Court Order (such as Consent Orders) or a Binding Financial Agreement (BFA).

  • The Timing: The legal document (Order or BFA) must be signed and, in the case of Orders, sealed by the Court before the property transfer is lodged with Titles Queensland.

  • Specific Identification: The document must clearly identify the specific property (e.g., the address and Title Reference/Lot on Plan) and state exactly who it is being transferred to.

  • Amicable Breakdown: The transfer must be a direct result of the irretrievable breakdown of the marriage or de facto relationship.

3. The Implementation Process

In Queensland, you do not simply “not pay.” You must formally apply for the exemption during the conveyancing process:

  1. Form D2.2 (Dutiable Transaction Statement): This is the primary QRO document where you “claim” the exemption. You must select the specific section of the Family Law Act (e.g., s90, s90L, or s90WA) that applies to your case.

  2. Self-Assessment: Most solicitors will use the QRO Online portal to self-assess the transaction as “Exempt.”

  3. Titles Queensland Lodgment: Once the QRO has “stamped” the transfer (electronically or physically) as exempt, the Form 1 Transfer is lodged with Titles Queensland to update the ownership.

4. Key Considerations

  • Third-Party Transfers: The exemption generally only applies to transfers between the parties to the relationship or their children. Transfers to a third party (like a new partner) or a company/trust may attract full duty unless structured very carefully.

  • Retrospective Refunds: If you paid stamp duty at the time of transfer but later obtained Consent Orders, you may apply to the QRO for a retrospective refund, provided you do so within the statutory time limits (typically 5 years).

Understanding the Exemption

The core principle behind this exemption is that the transfer of property is not a “sale” in the traditional sense but rather an adjustment of existing property interests due to a relationship breakdown. The Commonwealth Family Law Act and the Queensland Duties Act work together to provide this relief.

In Queensland, transferring property (including real estate, vehicles, and other dutiable property) as part of a family law property settlement can be exempt from transfer duty (commonly known as stamp duty). This exemption is a significant financial relief for separating couples.

Being eligible for a stamp duty exemption is a significant financial advantage when formalising your property settlement through Consent Orders in Queensland, but you must follow the correct process.

In Queensland, a significant financial benefit of formalising a property settlement after a marriage or de facto relationship breakdown is the exemption from transfer duty (commonly called stamp duty). This means that when real estate or other dutiable property is transferred between former partners as part of their settlement, the substantial tax that would normally apply to these transfers can be avoided.

Legislation for Stamp Duty Exemption:

The relevant legislation providing this exemption in Queensland is primarily the Duties Act 2001 (Qld), which interacts directly with the Family Law Act 1975 (Cth).

Specifically, the key sections providing for the exemption are:

  • Section 151 of the Duties Act 2001 (Qld): This section generally provides an exemption for residential property transfers between a spouse or a de facto partners where the transfer is completely by way of gift. However, the more specific Family Law Act provisions are usually relied upon for a relationship breakdown.

  • Section 424 of the Duties Act 2001 (Qld): : This section cross-references the relevant provisions of the Family Law Act 1975 (Cth) that deal with property alterations due to relationship breakdowns. These include:

    • Section 90 of the Family Law Act 1975 (Cth): This section exempts transactions from state or territory duties if executed by a court order made under Part VIII of the Family Law Act (for married couples). This exemption includes Consent Orders.

    • Section 90L of the Family Law Act 1975 (Cth): This section exempts transactions from state or territory duties if they are executed by a financial agreement made under Part VIIIA of the Family Law Act (for married couples).

    • Section 90WA of the Family Law Act 1975 (Cth): This section exempts transactions from state or territory duties if they are executed in accordance with a court order or a financial agreement made under Part VIIIAB of the Family Law Act (for de facto couples).

Relevant Legislation: Family Law Act

A combination of Commonwealth and State legislation governs the stamp duty exemption for family law property settlements in Queensland:

  1. Family Law Act 1975 (Cth):

    • Section 90: This section grants the Federal Circuit and Family Court of Australia (FCFCoA) the power to make orders altering married couples’ property interests.

    • Section 90L: This section specifically exempts transactions (including property transfers) from State or Territory duties if executed per 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 executed according to a court order or a binding financial agreement made under Part VIIIAB of the Family Law Act.

The Process for Claiming the Stamp Duty Exemption:

The exemption for transfer duty in Queensland on property transfers arising from family law Consent Orders (or Binding Financial Agreements) is typically claimed through a self-assessment process via the Queensland Revenue Office (QRO) online portal.

Here’s a general outline of the process:

  1. Obtain a Sealed Court Order (Consent Orders):

    • This is the fundamental requirement. The Consent Orders, approved and sealed by the Federal Circuit and Family Court of Australia, must clearly specify the property to be transferred, the parties involved, and that the transfer is pursuant to the property settlement.

  1. Prepare Transfer Documents:

    • A Form 1 Transfer (from Titles Queensland) is prepared for real estate.

    • Other relevant documents depending on the asset (e.g., vehicle transfer forms).

  1. Complete a Dutiable Transaction Statement (Form D2.2):

    • This form is crucial for claiming the exemption. You must tick the relevant box indicating that the transaction is exempt under the Family Law Act (e.g., s. 90, 90L, or 90WA).

  1. Self-Assessment via QRO Online:

    • A conveyancer or solicitor typically processes property transfers through the Queensland Revenue Office’s (QRO) online self-assessment system.

  •  

    • They will input the transaction details, select the appropriate exemption type (e.g., “s. 90 and 90L of Family Law Act” or “s. 90WA of Family Law Act” from the exemption type drop-down list), and declare the unencumbered value of the property.

Important Note: The transfer must be made in accordance with and pre-date the sealed Consent Order. This means the Consent Order must be in place before the property transfer is affected, and the transfer must directly implement what the Consent Order specifies. Stamp Duty Exemptions with Consent Orders in Queensland

FAQ on Stamp Duty exemptions in Queensland.

When you are transferring real estate between separating spouses, Queensland would  normally charge transfer duty (stamp duty) through the Queensland Revenue Office (QRO). However, if you are formalising your settlement via Consent Orders under the Family Law Act 1975 (Cth) you are able top apply for  a duty exemption under Section 424 of the Duties Act 2001 (Qld). Whether transferring a family home in Brisbane, the Gold Coast, or the Sunshine Coast, court-stamped orders ensure the QRO waives transfer duty completely during title buyouts. Learn more at Stamp Duty Exemptions in Queensland.
2. Can an informal written agreement or private contract satisfy the Queensland Revenue Office?
No, the Queensland Revenue Office strictly rejects informal written agreements, statutory declarations, or private handshake deals. To grant a relationship breakdown exemption under the Duties Act 2001 (Qld), the QRO requires an official matrimonial or de facto instrument—specifically court-sealed Consent Orders or a certified Binding Financial Agreement. Attempting to transfer title through Titles Queensland without sealed court orders forces the registry to charge full ad valorem transfer duty on the property’s market value. Read how to formalise your agreement correctly at Stamp Duty Exemptions in Queensland.
3. Does the QRO stamp duty exemption apply to investment properties and motor vehicles?
Yes, the Queensland matrimonial and de facto exemption applies broadly to various types of “dutiable property” beyond just your primary residence. Under Section 424 of the Duties Act 2001 (Qld), Transfers covered in your Consent Orders, including transfers of residential investment properties, commercial premises, vacant land, and registered motor vehicles, qualify for full transfer duty waivers. The Consent Orders must explicitly detail the property’s Title Reference or vehicle details to satisfy self-assessment requirements. Explore eligible property types at Stamp Duty Exemptions in Queensland.
4. How do solicitors process the Queensland transfer duty exemption during conveyancing?
During property conveyancing, your Queensland solicitor or conveyancer self-assesses the transaction as “Exempt” directly through the QRO Online portal. They lodge a Dutiable Transaction Statement (Form D2.1) along with a certified copy of your court-sealed Consent Orders and Titles Queensland transfer forms. Because the portal self-assesses the exemption immediately upon attaching valid court orders, you avoid paying upfront duty costs or waiting for lengthy manual QRO tax refunds. Discover how Queensland conveyancing works with court orders at Stamp Duty Exemptions in Queensland.
5. What is the difference between a Queensland family law exemption and a spousal gift exemption?
Section 151 of the Duties Act 2001 (Qld) allows a person to gift half of their principal place of residence to a current spouse duty-free, provided they hold equal shares moving forward. Section 151 does not apply when one partner buys out the other or transfers sole ownership following a breakup.  Property transfers due to a Family Law matter relys on Section 424 (or Family Law Act provisions), which grant 100% duty exemptions on complete ownership transfers, investment properties, and complex asset splits. Check out Queensland tax rules at Stamp Duty Exemptions in Queensland.



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Do you need independent legal advice for Consent Orders

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Do You Need Independent Legal Advice for Consent Orders?

When you and your former partner have managed to reach an amicable agreement about parenting arrangements or dividing your assets, it can feel like the hardest part of separation is behind you. To make that agreement official, secure, and legally binding, the most common path is applying for Consent Orders through the Federal Circuit and Family Court of Australia (FCFCOA).
 
However, a question that almost always arises during this process is: Do we both need to obtain Independent Legal Advice (ILA) before we sign and lodge the documents?
 
The short answer is no; it is not a strict legal requirement. But while the law doesn’t force you to sit down with a lawyer, understanding how the legislation works—and why Consent Orders differ from other financial agreements—will help you navigate the process smoothly and with absolute confidence.
 

What the Legislation Actually Says

 

To understand why independent legal advice isn’t mandatory for Consent Orders, we have to look at the Family Law Act 1975 (Cth) and how the Court treats different types of separation agreements.
 

Consent Orders vs Binding Financial Agreements (BFAs)

The main reason people get confused about legal sign-offs is that they mistake Consent Orders for a Binding Financial Agreement (BFA), often referred to as a “prenup” or separation agreement.
 
Under Sections 90G and 90UJ of the Family Law Act, a BFA is completely private and does not go before a judge. Because there is no Court oversight, the legislation sets an incredibly high bar to protect both parties: a BFA is legally binding only if both parties have received independent legal advice from separate, qualified lawyers who must sign a formal Certificate of Independent Legal Advice. Without those sign
 
Consent Orders operate under an entirely different legal framework. When you apply for Consent Orders, you are lodging your agreement directly with the FCFCOA.
 

The Court’s Role: The “Just and Equitable” Test

 

A Registrar or Judicial Registrar reviews your application and the minute of order; the law relies on judicial approval rather than an individual lawyer’s review. The applicable legislation under Section 79 (property) and Section 60CA (parenting) of the Family Law Act.
 
  • For Consent Orders with Property Settlements: The Court doesn’t simply “rubber-stamp” your consent Orders. Under Section 79, a judicial officer must be independently be satisfied that your agreement on the division of assets, liabilities, and superannuation is “just and equitable” based on your unique history, contributions, and future needs.
  • For Consent Orders with Parenting Orders: Under Section 60CA, the Court’s paramount consideration is ensuring that the proposed arrangements are in the best interests of the child.
If you decide to fill out the Court’s DIY kit and lodge it without a lawyer, the Court will still look over your financial disclosure and parenting plans. If the agreement looks heavily one-sided or unfair under the legislation, the Registrar may reject the application or ask for clarification, even if you both willingly signed it.
 
While independent legal advice isn’t a statutory condition to make Consent Orders valid, having an expert draft the actual “Minute of Order” ensures your agreement is written in precise legal terms that the Court will accept on the first try.

FAQ: Top 5 Questions Clients Ask

  • Question 1. If a lawyer doesn’t sign off on my Consent Orders, are they still legally binding?

    Answer

    Yes. Once the Federal Circuit and Family Court of Australia approves your application and issues the sealed Orders, they carry the exact same legal weight as a judgment handed down by a judge after a contested court trial.

  • Question 2. Can we use the same lawyer to draft our Consent Orders?

    Answer

    A single lawyer or law firm cannot provide independent legal advice to both parties, as that represents a conflict of interest. However, if you are both in complete agreement and working amicably, a specialised law firm can act as a neutral drafter to prepare the formal application and draft the precise legal terms based on your mutual instructions, without taking sides or offering adversarial advice to either of you.

  • Question 3. Do Consent Orders give us protection against future financial claims?

    Answer

    Yes, Consent Orders do give you protection against all future claims. Finalised property Consent Orders permanently close the door on future financial claims under the Family Law Act (except in very rare, extreme circumstances like fraud or severe non-disclosure). This provides total financial finality, allowing you to buy property, earn income, or receive inheritances in the future without worry.

  • Question 4. Can we get stamp duty and capital gains tax exemptions without independent legal advice?

    Answer

    Yes. As long as the property transfer is formally executed pursuant to a sealed Consent Order issued by the Court, you are generally eligible for a stamp duty exemption on the transfer of real estate or motor vehicles, as well as Capital Gains Tax (CGT) rollover relief. The exemption relies on the Court order itself, not on whether you received independent legal advice.

  • Question 5. What happens if the Court thinks our agreement is unfair?

    Answer

    If a Court Registrar reviews your application and determines that the division is not "just and equitable" under Section 79, they will not grant the orders. Instead, they will usually issue a "requisition" letter asking both parties to explain why the split is fair given your circumstances, or they may request that you amend the terms before they will approve it.

What Are the Main Concerns Clients Have?

1. “Will our paperwork get rejected by the Court if we don’t have lawyers?”

  • The Concern: Clients worry that without formal legal representation, they will make technical errors in the complex Court forms or draft vague terms, causing the Registrar to reject the application.
  • How We Address It: At Kate Austin Family Lawyers, we eliminate this stress by completely handling the drafting process for you. Because we focus exclusively on Consent Orders, we know exactly what the Court looks for. We ensure your application is filled out perfectly and your orders are written in the precise legal framework required, so your application is approved seamlessly.

 

2. “We don’t want an adversarial legal battle to ruin our amicable relationship.”

  • The Concern: Many separating couples are proud that they have stayed on good terms and fear that involving traditional family lawyers will cause tension, drag out negotiations, and turn a simple agreement into an expensive fight.
  • We Address It: We are a strictly non-conflict family law firm. We only work with amicable clients who have already reached an agreement. We do not negotiate, take sides, or litigate. Our role is strictly to act as a neutral party to formalise your mutual agreement into legally binding orders, preserving your positive relationship.

 

3. “How do we handle a superannuation split properly without getting legal advice?”

  • The Concern: Superannuation splitting is highly technical. Clients are often overwhelmed by the strict requirements, such as providing formal “procedural fairness” to the super fund trustee before lodging the documents with the Court.
  • How We Address It: We handle all the heavy lifting regarding superannuation splits. Our fixed-fee service includes drafting the specific super-splitting clauses, calculating the figures correctly, and managing the entire procedural fairness notification process with your super fund trustee to ensure the Court accepts it without delay.

 

4. “Is it going to cost us thousands of dollars just to formalise our agreement?“

  • The Concern: The fear of open-ended hourly legal fees causes many couples to avoid seeking help, prompting them to try difficult “DIY” options that leave them legally exposed.
  • How We Address It: We provide absolute financial certainty by operating on a strict, transparent fixed-fee basis. You will know the exact cost of formalising your parenting or property agreement before we even begin, with no hidden costs or surprise hourly bills.

 

5. “A Client wants this sorted quickly. Will using a lawyer slow things down?”

  • The Concern: Traditional family law matters can drag on for months, leaving families in limbo when they just want to move forward with their lives. Clients, while their lawyer drafts a letter, send it to you for approval, and wait for your approval before addressing the other solicitor. Then the process starts again.
  • How We Address It: We move at your speed. Once you submit your details through our streamlined intake system, we guarantee that the first comprehensive draft of your Consent Orders will be ready for your review within 24 hours. Clients are generally the determining factor in how long a matter takes to complete.

Real-World Application at Kate Austin Family Lawyers

At Kate Austin Family Lawyers, we have built our entire practice around a unique reality: separating couples who are completely amicable do not need to be forced into an expensive, adversarial system.
We recognise that under Australian law, independent legal advice is not a mandatory prerequisite to secure valid, binding Consent Orders. If you and your former partner have already worked out a fair, mutual arrangement, you don’t need two separate law firms sending combative letters back and forth.
Our real-world application of this principle is simple: we provide a streamlined, fixed-fee drafting and filing service designed explicitly for couples who agree. We act as a professional, neutral drafter, taking your words and intentions and translating them into a flawless “Minute of Consent Orders” and Court Application. Because Family Law is a federal jurisdiction in Australia, we can provide this highly specialised, fast-turnaround national service to clients across the country.
By bypassing unnecessary conflict and focusing solely on formalising your agreed terms, we ensure your Consent Orders are drafted within 24 hours, are legally robust, and are structurally sound for seamless Court approval—giving you absolute closure and certainty so you can step confidently into your next chapter.
 

What is the process for obtaining a Consent Order from the family court

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The Process for Obtaining Consent Orders in Australia:

 

  1. Reach an Agreement: The parties must first come to a mutual agreement on all the issues they wish to have formalised. This is the most important element in this process. Agreement can be achieved through direct negotiation, mediation, family dispute resolution, or with the assistance of a lawyers.
  2. Draft the Orders: The agreed terms are then drafted into a formal document, often referred to as “draft consent orders” or “minutes of consent.” It is highly recommended to seek legal assistance during this stage to ensure the orders are worded correctly, are legally sound, and accurately reflect the agreement.
  3. Apply to the Court: An “Application for Consent Orders” is filed with the relevant court (usually the Federal Circuit and Family Court of Australia or, in Western Australia, the Family Court of Western Australia). This application includes the draft orders and other required supporting documentation.
  4. Court Review and Approval: A Registrar or Judge will review the application and the proposed orders.
    • For parenting orders, the court must be satisfied that the arrangements are in the best interests of the child.
    • For property orders, the court must be satisfied that the agreement is “just and equitable”.
  1. Orders released from the registrar: If the registrar is satisfied, it will approve the agreement and make the Consent Orders legally binding. The orders are then sealed by the court and become legally binding. The term “sealed” refers to the stamp placed on the orders.

The Step by Step Process

Step 1: Reaching an Agreement

The first and crucial step is reaching an agreement with your former partner regarding:

  • Division of assets and property
  • Parenting arrangements (if applicable)
  • Financial matters
  • Spousal maintenance (if relevant)

Step 2: Document Preparation

Required documents include:

  1. Application for Consent Orders form
  2. Minute of Consent Orders
  3. Supporting documentation

All sections about financial situations must be completed, including:

  • All assets and liabilities in joint and individual names
  • Current values of properties
  • Financial resources
  • Superannuation details

Step 3: Document Signing and Verification

Both parties must:

  • Sign the consent orders
  • Have signatures witnessed by an authorised person
  • Provide all required supporting documentation

Step 4: Submission Process

The application should be:

  • Filed electronically via the Commonwealth Courts Portal (preferred method)
  • Submitted with the current filing fee ($200 as of 2025)
  • Include all required supporting documentation

Step 5: Court Review and Approval

The court will:

  • Review the application (typically takes 4 weeks)
  • Ensure orders are “just and equitable.”
  • Verify parenting orders are in children’s best interests
  • Issue sealed copies once approved

Special Considerations

Property and Financial Orders

Must include:

  • Complete disclosure of all assets and liabilities
  • Clear division arrangements
  • Superannuation splitting details (if applicable)
  • Stamp duty and capital gains tax implications

Parenting Orders

Must address:

  • Living arrangements
  • Time spent with each parent
  • Communication arrangements
  • Decision-making responsibilities
  • Educational and health matters

Professional Assistance

It is not compulsory to seek legal advice. Seeking legal assistance is recommended to:

  • Ensure proper completion of documents
  • Verify agreement is what they believe is “just and equitable.’
  • This will significantly increase the likelihood of court approval

Conclusion

Obtaining consent orders involves a process from reaching an agreement to court approval. It can be completed without legal assistance, however professional guidance can help ensure success and protect both parties interests.

The process provides a cost effective and less adversarial alternative to contested court proceedings but will still result in legally binding arrangement.