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) exemptions 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.

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• • 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.

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• 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 Canberra 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:

 

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

1. • 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.

1. Prepare Transfer Documents:

1. • 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.

1. • For other dutiable property, the appropriate transfer forms for that asset type will be used.

 

1. Complete a Buyer Verification Declaration (BVD):

1. • 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.

 

1. Lodge Documents with Access Canberra (via PEXA or directly):

 

1. • 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.

1. • If not using PEXA, documents can be lodged directly with Access Canberra (which manages land titles and revenue services in the ACT).

1. • When lodging, the sealed Consent Order (or a certified copy) must be provided as proof of exemption.

1. Assessment and Endorsement:

1. • 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 Canberra 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 Exemptions in Canberra ACT? 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 conveyance duty exemption in the ACT provides 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.