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Transfer Property in a Marriage Separation

A lot of people are misunderstanding that in a marriage separation situation, that they agree to the split of assets, and that one party takes on the home loan and then transfers the property to the other.

The issue with this process is that:

  • People don’t realise that banks treat a home loan that is in joint names as one entity;
  • When one party takes over the home loan, the banks treat this as a new home loan. So, you have to go through the finance process again; and
  • If you don’t have a court order, then you pay stamp duty on the half share that you are taking over – even though no real money changes hands. In some cases, the stamp duty could be over $20,000 (for example if you transfer 50% of a $1m property).

If done correctly, and there is a Family Court order in place, the stamp duty can be done for what is called nominal stamp duty (depending on the state in Australia, it can range from $20 to $100). So, the process is different.

The Family Court order does not need to be a combative approach either, as there are Consent Orders available, which is an agreement between the parties.

A refinance to a single name is also something that has to be considered, as with the change in lending rules and the way that banks assess you, you may want to take over the home loan, but the bank may not allow you to do so.

Also, the valuation of the property that a bank may give you might not be as much as you think it will sell for, which can provide people with issues.

The key is to seek advice and assistance before going through a marriage separation to see what can be done.

If you have any questions or concerns regarding this matter, please call the Client Services team on (08) 9227 6300 or email

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Important information and disclaimer

This publication has been prepared by AustAsia Group, including AustAsia Financial Planning Pty Ltd (AFSL License No 229454), AustAsia Legal Pty Ltd (ACN 123 160 476) and AustAsia Real Estate Pty Ltd (REBA Licence No. RA1736).

AustAsia Legal Pty Ltd – Liability limited by a scheme approved under Professional Standards Legislation.

Any advice in this publication is general only and has not been tailored to your circumstances. Accordingly, reliance should not be placed on the information contained in this document as the basis for making any financial investment, insurance, or other decision. Please seek personal advice before acting on this information.

Information in this publication is accurate as at the date of writing, 2 August 2019. Some of the information may have been provided to us by third parties. While it is believed the information is accurate and reliable, the accuracy of that information is not guaranteed in any way.

Opinions constitute our judgement at the time of issue and are subject to change. Neither the Licensee nor any member of AustAsia Group, nor their employees or directors give any warranty of accuracy, nor accept any responsibility, for any errors or omissions in this document.

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