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Buying Ex-Spouse Share of Unit - Stamp Duty?

Discussion in 'Family Law Forum' started by Shaun Fox, 2 July 2014.

  1. Shaun Fox

    Shaun Fox Member

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    Hi, I am attempting to buy my ex spouse out of unit. We have agreed on a modest amount ( property settlement), that I will pay
    her $3500. I will be borrowing the full amount of $265, 000 off another lender from which we are with now. We have been broken up for 3 yrs.. We do not have a formal separation agreement done. Do I have to pay any stamp duty on borrowing 265k and how do we handle the pay out of $3500 cash
    to my ex partner?

    So my questions are, do I have to pay half, full or none stamp duty on the property I half own and how to formalize the transfer of $3500 to my ex spouse.
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Shaun

    Is there a reason you do not have a BFA - Binding Financial Agreement, or paperwork to lodge property settlement orders by consent with the Court? This is what is required by the legislation for the property settlement to be final and binding.

    Have you sought your own legal advice regarding your rights in a property settlement? This is mandatory, and a certificate from a lawyer is required before you sign a BFA.

    This is critically important, and I cannot stress strongly enough the need for this to be done to get your affairs in order to avoid the potential for disputes in the future.

    With regard to Stamp Duty –– in order to qualify for a stamp duty exemption pursuant to the Family Law Act 1975, you have to finalise your property settlement in compliance with the legislation.

    If not, (for example in NSW) you may need to rely upon the discretion of the commissioner of stamp duties to approve some other form of property settlement agreement between you both (however, this is not recommended).

    Finalising your property settlement in accordance with the requirements of the Family Law legislation, may also provide CGT - Capital Gains Tax exemptions.
     

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