The transfer of property (family home or investment properties) in exchange for a cash payment is a common occurrence during property settlement after separation or divorce.
After separation it is common for a couple to transfer the ownership of property, whether it be the family home, investment properties or both.
The transfer of property may be executed in a number of different ways. Most commonly, property is either transferred from:
- the joint names of both spouse or de facto partners, into the name of one party only; or
- from one party to the other.
To transfer property, a Transfer form needs to be registered with your State Lands department.
The Transfer form states the current owners of the property (called the Transferors), and the new owner (the Transferee) that the property is to be transferred to. For example, the Transferors may be Reginald Smith and Judy Smith, and the new owner (the Transferee) may be Judy Smith.
You’ll also need to provide the following information –
- The volume and folio number of the land being transferred;
- The estate or interest being transferred (e.g. a fee simple, leasehold estate, life estate or remainder expectant); and
- The transferee’s manner of holding (e.g. sole proprietor, joint proprietor or tenant in common)
Make sure the Transferor’s details on your Transfer form, match the owner’s details listed on the Title for the property exactly. You can do this by getting a copy of your Certificate of Title, or ordering a title search. A title search will show the information held in your respective state or territory’s Register of land. It includes the property owners’ names and addresses.
Before lodging your signed Transfer at the Lands department, it will first need to be stamped by the State Revenue Office. If you are seeking an exemption of stamp duty, for example, if transferring the marital home between spouses, or an investment property pursuant to a Financial Agreement, then you will need to submit the necessary exemption documentation and have your Transfer marked as exempt. There are different procedures depending on your state or territory – so click on the links below if you need more details.
Once the Transfer is stamped by the State Revenue Office, it will then need to be registered at the Lands Department in your respective state or territory. This will transfer the title to the new owner.
If a mortgage exists over the property, it will need to be discharged (paid out) and a new mortgage taken out in the name of the party to whom the property is being transferred to.
The financial institution providing the new loan funds will usually arrange for the completed Transfer form to be registered at the same time as they are registering their Mortgage over the land. They will hold the Certificate of Title as security, usually not releasing it until their Mortgage is paid out. They will usually register the Transfer form at the same time that they register the Discharge of the old mortgage, and the registration of their new Mortgage over the property.
Check with your Mortgagee (Financial Institution) first
If you are re-mortgaging, check with your incoming financial institution about what they will need from you first.
The financial institution will usually need the signed and stamped Transfer form and a copy of your Binding Financial Agreement.
Doing it yourself?
To prepare the Transfer form yourself and, if necessary, complete the registration process (if a bank is not registering the Transfer on your behalf), see:-
- Australian Capital Territory
- New South Wales
- Northern Territory
- Queensland
- South Australia
- Tasmania
- Victoria
- Western Australia
Alternatively, you may wish to use a settlement agent, conveyancer or solicitor to undertake this process on your behalf.
This is a brief summary only. For more detailed information, contact the Land Titles Office or Revenue Office in your state or territory directly about their requirements, forms and fees when transferring land. Direct links to these organisations are provided off the pages linked to above.
Last Update and Fact Check By Kirra Griffin January 2022
Kirra Griffin is a final-year law student at Melbourne Law School. As our resident legal assistant, Kirra uses her specialised knowledge of the law to translate complex concepts into easily digestible information.