Article by Hamish Burke

The Australian Bureau of Statistics (ABS) has recently published its national and state statistics on marriages and divorces for 2024. The statistics reveal there were 47,216 divorces granted in Australia for the 2024 period, with the median duration of marriage to separation being 9.3 years.[1]

Given the well-documented increase in property prices across Australia, parties to property settlements are shifting their primary focus towards the question of who keeps the family home. In most instances, one party will receive the family home with the other retaining other assets such as superannuation and motor vehicles. However, there are several ancillary issues which couples, including de facto partners, must consider when finalising their property settlement, namely:

1. transfer duty implications;
2. legal representation for property transfers; and
3. the legal and other costs of transferring property.

We often encounter consent orders and financial agreements prepared without giving proper consideration to these factors, which sometimes causes further disputes between the parties.  We discuss these issues further below.

Transfer Duty Implications

Transfers of real property pursuant to a family law agreement is generally exempt from transfer duty (previously known as stamp duty) in Queensland. Recipients of property do not pay transfer duty on transactions that put into effect the terms of court orders or financial agreements (also known as binding financial agreements or BFAs) pursuant to specific sections of the Family Law Act 1975 (Cth) (the Act). In order for a family law property transfer to be exempt from transfer duty, court orders and BFAs must, amongst other things:

1. be a valid order or agreement (court orders must be made pursuant to Part VIII of the Act and BFAs must be made pursuant to Part VIIIAB of the Act);
2. pre-date the transfer;
3. detail the property being transferred; and
4. state who the property is to be transferred to.

Our team at SM Family Law can assist with preparing consent orders and BFAs to ensure these requirements are met and no transfer duty is payable.

Legal Representation for Property Transfers

Another factor for parties to consider is who will represent them for the transfer aspect of the matter. We find many family law firms do not assist with the transfer side of the property settlement, so we often assist parties after their orders or BFAs have been finalised with another firm. Our property and conveyancing team is equipped with the knowledge and experience to assist with family law property transfers, regardless of whether the property settlement was finalised with another firm.

Unless an exemption applies, all family law property transfers must occur electronically.  From 20 February 2023, certain instruments, including transfer documents, must be lodged using an electronic conveyancing network. Therefore, unless a legislative exemption applies, such as if one party is not represented by a legal practitioner, settlement must be completed electronically.

Although our office can assist with paper settlements, financiers are now becoming increasingly averse to them. Therefore, for a property that need to be refinanced, family law parties should check whether their financier can facilitate a paper settlement, otherwise, the parties must seek legal representation to assist with an electronic settlement. Our firm cannot assist both parties to a family law property transfer and so, this should be considered before the property settlement is documented. Regardless of the documentation you have, our property and conveyancing team is happy to assist parties who have had their property settlement finalised elsewhere.

Legal and Other Costs of Transferring Property

Last, but certainly not least, parties to a property settlement should consider who is responsible for the costs of a property transfer. We often receive orders and BFAs which do not stipulate which partner is responsible for bearing the costs of a transfer, such as legal fees, registration fees, and PEXA fees. Normally, each party is responsible for their own costs, but parties should consider this aspect before finalising their property settlement, otherwise, this can cause unnecessary tension between the parties.

Our team at SM Family Law can assist with all aspects of a property settlement, and you can contact SM Family Law by calling 07 3036 4001 or emailing office@smfamilylaw.com.au for more information.

Further, you can contact our conveyancing and property team for a quote to assist with transferring property by calling 07 3397 9622 or emailing conveyancing@smlawyers.com.au.

[1] Australian Bureau of Statistics, Marriage and Divorces, Australia, 2024 (Catalogue No 3310.0, 23 July 2025).