Transferring the title of a house after a separation divorce can be a complex process, involving several legal and financial considerations.
If you are separating or divorcing, you may have a family lawyer represent you in negotiating the property division and engage a conveyancer separately to do the actual transfer. Engaging a property lawyer or conveyancer to handle the conveyancing or title transfer means that you both have the same representation. They are independent from the personal family law advice you may have received.
Property settlements can be done by Court Order or a properly drafted Financial Agreement.
Here's a guide to help you understand the steps involved in transferring property after a separation:
Assuming you have come to an agreement about what the division of the property is going to be, here are the next key steps for transferring house title after separation or divorce:
- Assessing Financial Ability: Before initiating the title transfer, check if you can finance the transfer in your sole name if the property was previously held jointly. The existing mortgage will be paid out at the transfer and the person remaining on the title will need to apply for a new loan if they require a mortgage.
- Legal Documentation: You will need to either mutually agree or if not have a Court Order or Financial Agreement that outlines the terms of the property transfer.
- Transfer Documentation: You will need to complete the necessary documentation and your conveyancer will obtain all the necessary information to ensure that the transfer can go through. This may also involve a discharge of your current mortgage and co-ordinate with the incoming mortgagee or lender to provide funds for settlement.
- Lodging and Fees: Submit the completed transfer form along with any required land titles office fees.
- Stamp Duty: Stamp duty is typically waived for transfers between spouses. However, the specific requirements can vary by state and depend on how you hold the property i.e. personal names v's trust etc.
- Capital Gains Tax (CGT): Depending on your situation, CGT may apply, particularly if the property is an investment property. It's recommended to consult with a tax professional to understand any potential tax implications.
- Settlement: just like selling a house when the title is transferred there is a settlement and funds can be involved, or not. This part of the conveyance is handled the same as any other property sale. If one party is receiving funds from the equity of the house they will be receive their money at settlement.
Other considerations when transferring property after a divorce
Expert Advice: It is advisable to seek guidance from a conveyancer or solicitor to ensure all legalities are properly addressed and to help navigate the complexities of property law.
Financial & Accounting: It is a good time to get advice from your accountant, broker or financial advisor when acquiring or disposing of major assets. Timely professional advice can help you make key decisions about your finances.
Emotional Considerations: Deciding who keeps the property can be emotionally charged. It's beneficial to resolve these issues through mediation or with the help of family lawyers to avoid prolonging the process.
Market Conditions: If the property market is low, it might be worth considering holding off on selling the property to avoid financial loss, or even maintaining joint ownership temporarily, if feasible.
Disputes: If there is a dispute that arises and you can't agree on how the funds are to be split your conveyancer will have to cease to act of you. You will need to go and get your own representation on how the property division is to work. It is advisable to obtain a binding financial agreement at a minimum to formalise your property division.
Getting the right family law advice is essential
Transferring a house title after a divorce involves major decisions being made about your financial and future life. Getting advice from a divorce lawyer is essential to getting a clear plan on how to separate and entitlements you have.
At PCL Lawyers our team can advise you on all your family law and conveyancing requirements to help you navigate this process effectively.
We offer effective family law advice and handle conveyancing in family law matters where we do not act for either party to ensure impartiality.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
