If the last two years has shown us anything it has certainly demonstrated that life is forever changing for all of us and often the impact of these changes is beyond what we or anyone can predict.
Often life changes can be something positive like marriage or the beginning of a de facto or same sex relationship or conversely it could be a death in the family or all to common a divorce. Either way these situations are of a sensitive nature and need to be dealt with carefully so you need the right professional to guide you through the process. Especially in times of crisis when we might not be thinking as clearly as in normal circumstances.
If you need to transfer a property or business between family members, business partners or as part of a de facto relationship then your conveyancer can prepare the necessary documents for you regardless of whether it is the result of a relationship that has ended or of one with new beginnings.
There are several ways to transfer property; gifting, sale or court order but with all you will need your conveyancer to act on your behalf.
When the Family/Matrimonial Transfer is a result of a new relationship then your conveyancer will arrange for the transfer papers to be prepared and lodged in order that registration can take place. There could be a bank involved as well so the appropriate documents will need to lodged with any relevant discharges or new loans at the Land Titles Office.
Your Conveyancer will also ask you if you are going to be Joint Tenants or Tenants in Common and advise you (if you haven’t already) to obtain reputable legal advice as the implications can be life changing. Generally couples will become Joint Tenants and this means that the registered proprietors (and there can be more than two) own the property jointly – but if they are in new relationships or have children then they might want to become tenants in common leaving their share of the property to them; or you might want a different percentage applied to the property – ie one person owns 70% and the other 30% – or any combination as long as the shares add up to 100% ownership. it could also be different if it is family owning a property. If a Tenant in Common dies their interest in the property must be dealt with as part of their Estate via probate. If a joint tenant dies their interest in the property passes automatically to the surviving joint tenant or tenants – your conveyancer will prepare and lodge an Application to Note Death on your behalf.
SEPARATION AND DIVORCE
When your Family/Matrimonial Transfer is a result of a relationship that has ended your conveyancer is a really good place to start by discussing your situation. Your conveyancer will be qualified and experienced and able to help you understand the upcoming steps to take such as;
- Speaking to a solicitor
- Arranging court orders
- Stamp duty exemptions
If you are going through a separation or divorce and your property has to be transferred as part of your property settlement then your conveyancer can prepare the necessary documents for you as well as liaise with the financier. To do this a Family Court Order with clear instructions of the property transaction is the best course of action. If you transfer a share of the property to a former spouse or de facto partner you are NOT liable to pay Stamp Duty but you must ensure that the transfer of the property must be in accordance with either; all lawyers will advise you to have all your contracts reviewed by an experienced licensed Conveyancer. There may be registered dealings that may be negotiated to your benefit prior to entering in to a contract.
- A court Order made under the Family Law Act 1975 OR
- A binding financial Agreement made under the Family Law Act
Sometimes a caveat will need to placed over the property to secure the interest of a non registered party if Family Court Orders are yet to be done.
See also: What is a Caveat?
In many cases no Family Court Orders or Binding Financial Agreements have been prepared. It is in your best interest to arrange for these with a solicitor prior to transferring ownership. This ensures that the parties cannot come back a few years later and claim monies which they then believe they are entitled. Protect yourself and your family by seeing.
Quite often in delicate and stressful situations the parties are not talking or there could be restraint orders in place so your conveyancer will ensure all addresses, contact details etc remain confidential. This is a very good reason why you need your own conveyancer to ensure that there is no conflict of interest. Your Conveyancer will be experienced in these matters and will have dealt with these issues before; it is a good time in your life to have someone experienced and qualified to ensure your best interests are looked after.
It is possible for the transfer of property to be FREE of stamp duty under certain conditions, such as:
- A couple that is married to each other
- A de facto relationship, including same-sex couples that have been cohabitating in a bona fide relationship over a period of more than 2 years.
- A court order
WHAT WE DO FOR YOU IN A FAMILY/MATRIMONIAL TRANSFER
- prepare the legal documentation required to transfer the land including the necessary statutory declarations for stamp duty purposes
- liaise with your mortgage broker and/or your financial institution to ensure all necessary documentation is completed correctly and is ready for settlement
- adjust all rates, taxes and levies if required
- prepare a settlement statement detailing all funds due and payable at settlement
- disburse any funds at settlement in accordance with any Court Orders
- advise the various government authorities of the change of ownership
If you own a property with your spouse as joint tenants then an Application to Register Death is required to be lodged at the Land Titles Office which takes the deceased joint owner from the Certificate of Title.
However if ownership is by way of tenants in common then a Transmission Application will need to be lodged instead. In this instance a Grant of Probate will be required before the property can be dealt with. The Transmission Application transmits the ownership to the Executor of the Estate who can then either sell the property or transfer the property to the beneficiaries of the Estate.
CHANGE OF NAME OR ADDRESS
Often a Change of Name document is required to amend the name on the Certificate of Title. This comes about due to marriage, divorce or even a change of name by deed poll. If you have been requested for this to be done by your bank then you will need your conveyancer to prepare the relevant document that gets lodged at the Land Titles Office.
The same applies when you change your address. Most often this does not get done until you refinance or need to change it other reasons however you are able to lodge a Change of Address document at the Land Titles Office anytime at no charge.
At McKay Business Services we have specialists in this area and have dealt with many sad and delicate situations are fully aware of the sensitivity of all these types of transactions.
We will be there with you every step of the way to make sure the process is as seamless and stress free as possible.
The team at McKay Business Services are all members of the AICSA and are proud Adelaide conveyancers