Buying a property or house is a concept that most people are familiar with, and it’s an exciting time that can be relatively straightforward. However, when you want to transfer property to a spouse, it can be a little more complicated.

Transferring property to a spouse might seem straightforward at first. But, the process involves a series of legal steps and considerations. Transferring property to family includes triggers such as gifting property, divorce settlements, adding spouses or de facto partners to a title, estate planning, or providing financial support to children. Each of these situations carries its own legal, financial, and tax considerations.

In South Australia, transferring a matrimonial home can be exempt from stamp duty under specific conditions if the couple was recently married or has been living in a de facto relationship for a certain duration.

With over 45 years experience in conveyancing, there is nothing our team of experts haven’t seen, so we’re well equipped to assist you with this, often tricky, process.

Overview:

 

Transfer Property Title to Spouse

Transferring a property title to or from a spouse is often necessary due to significant life changes. These can include situations such as:

  • Adding a Spouse to the Title: You might want to include your spouse on property titles. This is a common step in solidifying shared ownership.
  • Removing a Spouse After a Breakdown: In contrast, following a relationship breakdown, it may be necessary to remove a spouse or partner from the property title.
  • Adapting to Lifestyle Changes: Sometimes, changes in lifestyle or personal circumstances may require adjusting property ownership details between spouses or partners.

Although these types of matrimonial property transfers might seem straightforward, they often involve complex and lengthy legal procedures. This complexity mirrors the intricate nature of relationships themselves. Each scenario demands careful consideration of legal, financial, and capital gains tax implications. It’s crucial to navigate these processes correctly to ensure the transfer is legally valid and aligns with your needs. Seeking professional legal advice is recommended to manage these transfers effectively and to understand the specific requirements and implications of your situation.

Learn more: changing your title details

So, can I transfer property to my wife?

Yes, you can transfer property to a spouse/wife if the property is a matrimonial home. A matrimonial home is defined as the shared principal place of residence of married, separated, or de facto partners.

This means that if the property in question serves as the main residence for you and your spouse, it can be transferred under these terms.

Is stamp duty payable on property transfer between spouses?

Fortunately, the Stamp Duties Act allows for the transfer of a matrimonial home to be free of stamp duty. This is subject to a number of conditions, which include (but are not limited to):

  • The couple is or were recently married to each other.
  • The couple has been living, or recently living, in a de facto relationship and cohabitating in a bona-fide relationship for no less than 3 years.

How to transfer property to a spouse

So, how do you go about it? You will need to engage a conveyancer to commence the transfer process. Eckermann Conveyancers have a great deal of experience in matrimonial transfers. We can ensure your transaction is as pain free as it can be. We will prepare all the necessary legal documents and liaise with relevant parties keeping everyone informed at each stage in the transaction.

Given the intricacies involved, it is important to approach this task with a comprehensive understanding and clear planning. Below, we aim to demystify the process, guiding you through each step to ensure a smooth and compliant property transfer to a spouse.

Step-by-Step Guide to Transferring Property to a Spouse

Step 1: Eligibility and Preparation

The first step in transferring property to a spouse involves determining eligibility. This means verifying that the property qualifies as a matrimonial home, which is defined as the shared principal residence of married, separated, or de facto partners. Once eligibility is established, the next phase is preparation, which involves gathering all necessary documents and information required to transfer property to a spouse.

Step 2: Understanding Stamp Duty Obligations

Before proceeding, it is essential to understand whether the transfer qualifies for a stamp duty exemption. This requires a thorough examination of the Stamp Duties Act and the specific conditions outlined for exemptions when you transfer property to a spouse. Factors such as the duration of the marriage or de facto relationship and the use of the property as a principal residence play a crucial role in this determination.

Step 3: Engaging a Conveyancer

Given the legal complexities involved, engaging a professional conveyancer is a crucial step. Conveyancers specialise in the legal aspects of property transfer and can provide invaluable assistance in navigating the process. They are responsible for preparing all legal documents, liaising with relevant parties, and ensuring that the transfer complies with all legal requirements.

Step 4: Consultation with Financial Institutions

If the property is subject to a mortgage, it is essential to consult with the lending institution involved to ensure they consent to the transfer. This step is crucial for asset protection and understanding the potential tax implications of the transfer. The lending institution’s consent is necessary to proceed without altering the existing lending structure.

Step 5: Legal Documentation

Your conveyancer will prepare the necessary legal documents to transfer property to spouse. These documents are vital for the legal transfer of the property and must accurately reflect the details of the transfer. This includes the preparation of transfer documents, adjustment of rates and taxes, and any other legal requirements specific to the transfer.

Step 6: Finalising the Transfer

The final step in the process involves finalising the transfer with the conveyancer. This includes completing any outstanding financial transactions, signing all necessary legal paperwork, and officially updating the title to reflect the new ownership structure. It is crucial that all parties are fully informed and agreeable to the terms of the transfer to ensure a smooth and compliant transition.

Do I need to involve a bank when I transfer property to a spouse?

If the transfer is being completed for Asset Protection, you might want to chat with your lending institution if there is a mortgage registered on the certificate of title. Confirm with them that they consent to the change without changing your lending structure or consult your accountant to make sure you understand the potential taxation implications.

The transfer of property to a spouse can be complicated and, if the transaction is not completed correctly, it can turn into a costly and emotionally draining exercise. If you have any questions about the transfer of property to spouses or family members, you can get in touch with us at any of our 12 offices face to face or by giving us a call on 8366 7900.

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