If you are going through a separation or divorce, it is important to understand where you stand in relation to your real estate assets and how any transfers of property will be executed.  Understandably, during such an emotionally charged and stressful time, it can be challenging to know which steps to take as well as stay focussed on the many legalities involved in the process.

The good news is there are clear steps to follow prior to the transfer of property during separation or divorce. Plus, once these are in place, you won’t need to hire an expensive lawyer to handle the transfer of your assets.

Below are the key steps involved in transferring a property after separation.

Binding Financial Agreement and Consent Orders

The first items you need to get in place are your Binding Financial Agreement or Consent Orders outlining how you and your former partner will divide your financial responsibilities once separated. These are especially important if you have shared property assets as Binding Financial Agreement and Consent Orders are time sensitive and required to take advantage of possible duty and tax exemptions. Please note: seeking legal advice before negotiating any financial agreement is highly recommended.

Obtain Consent of Mortgagee (Financial Institution) Prior To Commencing Transfer

If there are existing mortgages or loans against your residential home or investments properties you need to establish how these will be handled in order to fulfil your Binding Financial Agreement and Consent Orders.

Exemptions When Transferring Between Separating Partners

There are specific exemptions available to partners and spouses when transferring property ownership as a result of a separation or divorce settlement. Being aware of these exemptions and the guidelines surrounding them can save you both time and money.

Who Can Complete A Separation Transfer?

A separation transfer of property is generally completed by either:

However, to save yourself time, money and the potential stress involved in navigating the legalities of the property transfer and settlement process, we recommend that you speak with one of our qualified conveyancers or settlement agents.  As your settlement agent, we will act for both parties collectively to manage the property settlement process through the required stages to completion.  With our team efficiently handling your property transfer, you can relax knowing that all details will be taken care of for you.

How Much Does A Separation Transfer Cost?

The cost of a settlement transfer will depend upon the fees charged by the qualified professional managing the process. These can vary greatly, but using a lawyer may cost you up to $2,000 or more. However, by using a conveyancer from Residential Settlements we could do the process for around half of this figure, saving you a considerable amount of money. Call us for a quote.

In addition to the costs of managing the property transfer and settlement, there are specific fees associated with processing the transaction with the relevant government authorities, such as the Office of State Revenue and Landgate. We are happy to discuss these with you.

Transferring Investment Properties

If you have investment properties which form part of your divorce or separation settlement, we can also handle the process of property transfer for you. As discussed, there may be some Capital Gains Tax implications in regards to investment properties, so please speak to your qualified advisor to assess your specific situation.

Obtaining Legal Advice

As already outlined, the process of creating a Binding Financial Agreement, Consent Orders separating assets and understanding your obligations during a transfer of property due to separation or divorce are important and binding steps to take. We therefore strongly recommend that you always seek legal and financial advice from qualified professionals before proceeding.

How to Execute a Transfer of Property at a Glance

If you are considering managing the transfer and settlement of your property yourself, following is a brief outline of the steps involved:

  1. Gain your Binding Financial Agreement or Consent Orders
  2. Obtain Mortgagee Consent from your bank or financial institution for an existing mortgage or to refinance
  3. Confirm finance approval
  4. Apply for transfer of property in accordance with Consent Orders
  5. Verification of ID
  6. Arrange discharge bank mortgage
  7. Arrange new bank finance if applicable
  8. Sign mortgage documents
  9. Prepare Transfer of Land
  10. Assess Transfer of Land for duty payable
  11. Arrange for settlement

Or you can trust Residential Settlements to handle the whole process for you and save yourself precious time, effort and energy during a time which is traditionally very challenging and stressful for those involved.

If you’d like to chat to one of our conveyancers about a separation transfer, call us today on 08 9459 0044.

About the Author

Peter Fletcher

Peter began his real estate career in 1985 selling tin shacks and red dirt in Kalgoorlie. Moving to Perth in 1989 he quickly moved into agency ownership. By 2006, Peter had built a thriving agency managing over 600 rental properties. He then sold the business, taking time out of the industry to complete Honours in a Bachelor of Arts. Peter is now the Managing Director of Residential Settlements in Burswood and an active Army reservist. Peter has had just one hot shower since the 10th of May 2008.