Quick answer: A stamp duty exemption under section 90L of the Family Law Act means property transferred under a properly executed Binding Financial Agreement is exempt from duty in every Australian state and territory. One NSW case study saved $32,440 in stamp duty, over nine times the cost of the agreement itself, but each party needs independent legal advice to qualify.
When you transfer property as part of a divorce or separation settlement, stamp duty can add tens of thousands of dollars to your costs – even when you are simply removing one partner’s name from a title. But there is a legal exemption most separating couples don’t know about: property transferred under a Financial Agreement (also known as a Binding Financial Agreement or BFA) is exempt from stamp duty under the Family Law Act 1975. This article explains how the exemption works, who qualifies, and how to use it.
What is Stamp Duty?
Stamp duty (also known as transfer duty) is a tax imposed by Australian state and territory governments on certain transactions, including the transfer of property. When you buy or acquire an interest in property, such as during a divorce or separation, stamp duty is generally payable. The amount of stamp duty varies depending on the property’s location and value. This tax can be a significant financial burden, particularly in property settlements following a relationship breakdown.
An Stamp Duty Exemption example
To show what the exemption means in practice, here are current NSW median property values for Parramatta as of June 2026, and the stamp duty that would ordinarily apply on a 50% share transfer – that is, where a jointly owned property is transferred into one partner’s name only:
| Property type | NSW median value | Full transfer duty | 50% share duty | BFA cost | Net saving |
|---|---|---|---|---|---|
| 1-bed unit | $495,000 | $16,804 | $8,402 | $3,637 | $4,765 |
| 2-bed unit | $620,000 | $22,429 | $11,215 | $3,637 | $7,578 |
| 3-bed unit | $837,750 | $32,574 | $16,287 | $3,637 | $12,650 |
| 2-bed house | $777,500 | $29,517 | $14,759 | $3,637 | $11,122 |
| 3-bed house | $1,500,000 | $64,909 | $32,455 | $3,637 | $28,818 |
| 4-bed house | $1,672,000 | $74,369 | $37,185 | $3,637 | $33,548 |
For example: On a $1.5 million three-bedroom house, a couple transferring a 50% share would ordinarily pay $32,455 in stamp duty – a cost avoided entirely with a Financial Agreement, for a net saving of $29,059 after the cost of the agreement and legal review.
Based on current NSW median property values. Stamp duty calculated on a 50% share transfer (joint to sole ownership) at standard NSW residential rates. BFA cost: $3,396 (agreement kit + legal review service). Net saving = stamp duty saved minus BFA cost. Figures will vary by state, property value, and individual circumstances – confirm with your state revenue office or conveyancer.
BUT the Family Law Act provides that NO stamp duty (or other tax) is payable under any State or Territory law with respect to property that is dealt with in a Financial Agreement.
SECT 90L of the Family Law Act 1975 states:
Financial and other agreements etc. not liable to duty
None of the following is subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory:
(a) a financial agreement;
(b) a termination agreement;
(c) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order or financial agreement made under this Part.
Source: SECT 90L, Family Law Act 1975
What does this mean for you?
Partners can transfer property such as houses by using a Financial Agreement and be exempt from paying stamp duty.
This means that if you transfer property pursuant to your Financial Agreement, you will be exempt from stamp duty.
When applying for an exemption, you may need to provide the Office of State Revenue in your state of territory with a copy of your Financial Agreement, together with any other documents they may require.
Each state and territory has different procedures and requirements – you can view these and more by clicking on the links below.
If you have already paid stamp duty on a transfer of property in line with your Financial Agreement, most states will allow you some time to claim a refund.
Western Australia — de facto couples: important difference
For married couples in WA, the stamp duty exemption works the same way as in other states – it applies to property transferred under a Financial Agreement made under the Family Law Act 1975.
However, for de facto couples in WA, the position is different. De facto financial agreements in Western Australia are governed by the Family Court Act 1997 (WA) – specifically section 205ZP – rather than the Commonwealth Family Law Act. This means the s90L exemption in the Commonwealth Act does not directly apply to de facto agreements made under WA legislation. WA has its own equivalent provisions, but the documentation requirements and process differ.
If you are a de facto couple in WA, we recommend confirming the exemption requirements directly with the WA Office of State Revenue before proceeding, or raising it with your solicitor during the independent legal advice stage. We can assist – call us on 1800 608 088.
Things you need to know
- The exemption applies to both married and de facto family law agreements.
- The property for which an exemption is being sought must be specifically referred to in your Financial Agreement.
- Motor vehicles and other types of property which would normally incur transfer duty or tax are included under these provisions.
- The person to whom the property is being transferred must be either a party to the marriage or de facto relationship, a child or children of either or both of the parties or a trustee for a child or children of either or both of the parties to the marriage or de facto relationship.
Case Study: How a Financial Agreement Saved Sarah and Mark Thousands in Stamp Duty
Sarah and Mark had been married for 12 years when they decided to separate. They had jointly purchased a family home, and after their separation, it was agreed that Sarah would retain ownership of the property. Initially, they were concerned about the costs involved in transferring the property into Sarah’s name, particularly the substantial stamp duty fee.
After researching their options, they decided to formalise their property settlement through a Binding Financial Agreement. This legally binding document outlined the terms of their property division and, crucially, made them eligible for a stamp duty exemption. Because their financial agreement met the requirements of their state’s revenue office, Sarah did not have to pay the hefty stamp duty, saving her $32,440 in stamp duty – more than nine times the cost of the agreement itself.
“We see this situation regularly,” says Ian MacLeod, who has personally guided thousands of Australian couples through the financial agreement process. “Couples come to us focused on the cost of the agreement, and then realise the stamp duty saving alone makes it one of the best financial decisions they’ve made. In many cases the saving is five to ten times the cost of finalising the Financial Agreement.”
The ability to use RP Emery’s Financial Agreement Kit provided a simple, cost-effective way for Sarah and Mark to protect their financial interests and procure a stamp duty exemption during their property settlement.
One thing every couple should know before signing
A Financial Agreement cannot be amended once it has been signed. If circumstances change after signing – for example, if additional property needs to be dealt with or the terms need to change – the original agreement must be cancelled and an entirely new agreement prepared, including fresh independent legal advice for both parties.
This is particularly important where property is involved. Before signing, make sure the agreement specifically names every property or asset for which you intend to claim the stamp duty exemption. If a property is not referred to in the agreement, the exemption will not apply to it.
If you’re not sure whether a Financial Agreement is the right path for your situation, Ian is available to talk it through. Call us on 1800 608 088 or send us an enquiry – there’s no obligation.
What About Consent Orders — Do They Also Attract the Exemption?
Yes. The stamp duty exemption under the Family Law Act also applies to property transferred under Consent Orders, but it is worth understanding how the two options differ before deciding which route to take.
What Is a Consent Order for Separation?
If both parties have come to an agreement about how to divide their property and finances, and they wish to make the arrangement legally binding, they can apply to the court for orders by consent. In the proposed arrangement, you present your agreement to a magistrate, and if the magistrate agrees that your arrangement is fair and equitable, he or she will issue a court order. Both parties are then required to comply with the order.
However, if the magistrate perceives your arrangement to be inequitable (unfair), you will have the option to reapply – essentially going back to the drawing board.
Generally speaking, it is advisable to have an experienced lawyer draft your application for Consent Orders, as they can ensure it is properly prepared and contains all the information the court will need to approve your application. However, it is important to note that this is not a legal requirement, you have the option to draft the application yourself if you choose to do so.
Why Many Separating Couples Choose a Financial Agreement Instead
While Consent Orders involve the court reviewing and approving your arrangement, a Financial Agreement (BFA) is made directly between the parties which gives you more control over the outcome and the process. Here is why many separating couples prefer this route:
- No court involvement. A Financial Agreement is a private document between the parties. There is no need to apply to a court or wait for judicial approval.
- You control the terms. Rather than having a magistrate assess whether your arrangement is “fair and equitable”, and potentially reject it , you and your partner negotiate and agree on terms that work for both of you.
- Faster to finalise. Without the court filing and approval process, a Financial Agreement can typically be completed more quickly.
- Works for de facto couples. Financial Agreements are available to both married and de facto couples, including same-sex couples. De facto couples who do not meet certain thresholds may find it easier to proceed via a Financial Agreement than through the courts.
- Can cover a broader range of assets. A Financial Agreement can address property, finances, superannuation and other assets in a single document.
For couples who have already reached agreement on how to divide their assets, a Financial Agreement is often the faster, simpler path. The stamp duty exemption applies to both routes, the key is that the agreement must be properly executed, with independent legal advice for each party, and must specifically name the property or assets for which the exemption is being sought.
Before a Financial Agreement becomes legally binding, each party must obtain independent legal advice from a separate solicitor. This is a requirement under the Family Law Act, not simply a recommendation. The advice acts as a safeguard – ensuring both parties fully understand what they are signing, including the advantages and disadvantages of entering into the agreement for their particular circumstances. Consent Orders do not carry this same requirement because the Court assesses your proposed property settlement
Important: A Financial Agreement (BFA) cannot be amended once it has been signed. If circumstances change and a new arrangement is required, the original agreement must be cancelled and replaced with an entirely new agreement – including fresh independent legal advice for both parties. This is why it is important to ensure the agreement accurately reflects your intentions from the outset.
Get Your Financial Agreement
RP Emery’s professionally drafted Financial Agreement templates are prepared in consultation with experienced Australian lawyers and are designed to give separating couples a clear, compliant starting point for documenting their property settlement.
Not sure which agreement is right for your situation? Contact us or call 1800 608 088.
Helpful Links
Each state and territory has its own transfer duty exemption rules and application process. The links below take you directly to the relevant revenue office page for your state – these are the authoritative sources and are kept current.
Please let us know if these links are broken – the government website tend to update their links and change the page addresses.
Victoria Office of State Revenue
Frequently Asked Questions
Do I pay stamp duty on a divorce or separation property transfer in Australia?
Not necessarily. Stamp duty is normally payable when property changes hands, but the Family Law Act 1975 provides a specific exemption for property transferred under a Financial Agreement or Consent Orders. If your transfer is documented correctly, you should pay no stamp duty at all.
What is the stamp duty exemption under the Family Law Act?
Section 90L of the Family Law Act 1975 states that financial agreements, termination agreements, and deeds or instruments executed in accordance with a financial agreement or court order are not subject to any duty or charge under any State or Territory law. This means that property transferred as part of a properly executed Financial Agreement or Consent Orders attracts no stamp duty.
Does the stamp duty exemption apply to de facto couples?
Yes. The exemption applies to both married and de facto couples, including same-sex couples, provided the transfer is made pursuant to a Financial Agreement or Consent Orders under the Family Law Act. The property being transferred must be specifically referenced in the agreement.
Do Consent Orders also qualify for the stamp duty exemption?
Yes. Property transferred under Consent Orders issued by the Family Court also qualifies for the stamp duty exemption under Section 90L of the Family Law Act. However, the process for obtaining Consent Orders involves court approval, whereas a Financial Agreement is made directly between the parties without court involvement.
Does the exemption apply to motor vehicles and other assets — not just real estate?
Yes. The exemption is not limited to real property. Motor vehicles and other types of property that would normally attract transfer duty or stamp duty are also covered, provided the transfer is made pursuant to a Financial Agreement or Consent Orders and the relevant asset is specifically referred to in the agreement.
What if I have already paid stamp duty on a separation property transfer?
If you have already paid stamp duty on a transfer of property that was made in accordance with a Financial Agreement, most states and territories allow you to apply for a refund. Contact the Office of State Revenue in your state or territory for details on timeframes and the refund process.
Does the stamp duty exemption apply to de facto couples in Western Australia?
The answer depends on your circumstances. For married couples in WA, the Family Law Act 1975 applies and the s90L stamp duty exemption operates the same way as in other states. For de facto couples in WA, financial agreements are governed by the Family Court Act 1997 (WA) rather than the Commonwealth Act – WA has separate but equivalent provisions. We recommend confirming the specific requirements with the WA Office of State Revenue or raising it with your solicitor. If you are unsure which legislation applies to your situation, call us on 1800 608 088 and we can help you work it out.