Stamp Duty Exemptions with Consent Orders in Queensland: A Comprehensive Guide

The Queensland Duties Act acknowledges and implements the exemptions provided for in the Commonwealth Family Law Act when property is transferred due to a marriage or de facto relationship breakdown and is formalised by a court order (like Consent Orders) or a binding financial agreement.

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 in Queensland:

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):

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

1. • 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.

1. • 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 Exemption in Queensland:

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):

1. • 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:

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

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

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

1. • 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:

1. • 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