Property transfer after settlement — the conveyancing step

Two professionals, two fees

Family law and conveyancing are different professions with different fee arrangements.

• The family law firm (Lawcaptain, MKI Legal) drafts the consent orders or BFA. The orders authorise and direct the property transfer.
• The conveyancer or settlement agent completes the actual title transfer. They handle the documentation, the land titles office, the bank discharge, and the new mortgage if one is being established.

The family law firm and the conveyancer are separate engagements, with separate fees. We can refer you to a trusted conveyancer; we don't do conveyancing ourselves.

Why the separation

Conveyancing requires a separate practising qualification (a conveyancer's licence or a solicitor with conveyancing practice; in WA, a settlement agent's licence). It's a specialised area with its own regulatory framework. Combining family-law and conveyancing in one firm is uncommon — most family-law firms refer to external conveyancers, which is what we do.

What the conveyancer or settlement agent does

After consent orders are sealed (or after a BFA is fully signed where the BFA includes a property transfer), the conveyancer:

1. Receives the court-sealed orders (for consent orders) or the executed BFA (where applicable) as the legal authority for the transfer
2. Confirms the existing title position — current registered ownership, any mortgages, any caveats or charges
3. Coordinates with the discharging bank — if there's an existing mortgage, the bank needs to discharge it (or transfer the security to the new mortgagor)
4. Coordinates with the new lender — if the retaining party is taking out a new mortgage or refinancing, the new bank needs to be ready to settle on a defined date
5. Prepares the transfer documents — the actual instruments that change the title at the land titles office
6. Manages settlement day — the day on which the title transfer, the mortgage discharge, the new mortgage registration, and any cash exchange all happen simultaneously
7. Lodges the transfer with the relevant state land titles office (Landgate in WA, NSW Land Registry, equivalent elsewhere)

Settlement is typically done electronically through PEXA (Property Exchange Australia) — see below.

The stamp duty exemption — usually the biggest financial benefit

Property transfers between separating parties under sealed consent orders or a properly executed BFA generally qualify for a stamp duty exemption in most Australian states.

Instead of paying market-rate stamp duty — which on a typical family home can be tens of thousands of dollars — only a nominal administrative fee applies.

This is often the single largest financial benefit of formalising the settlement.

Confirming the exemption

The exact rules vary by state. The conveyancer or settlement agent handling the transfer will confirm the exemption applies to your specific situation. The exemption is usually automatic once the documentation (consent orders or BFA) is in place — the conveyancer lodges the relevant declaration with the title transfer.

Foreign-transfer declarations

Where one party is a foreign national, additional declarations may be required (e.g. a foreign-transfer declaration). This doesn't usually affect the family-law stamp duty exemption but does add documentation. Flag with your conveyancer at the outset.

Where the exemption doesn't apply

Two situations where the exemption can be more limited:

• Transfers into or out of trusts — the family-law exemption is for direct transfers between individuals. Trust-related transfers may face different stamp duty rules.
• Transfers to a third party (e.g. to a new partner or family member) — the exemption is for transfers between the parties to the relationship, not to outside third parties.

If your settlement involves a trust or a third-party transfer, get specific advice on the stamp duty position before the orders or BFA are finalised.

CGT rollover relief — usually no CGT at transfer

Transfers between spouses or former de facto partners under a court order or BFA qualify for capital gains tax rollover relief under the Income Tax Assessment Act 1997 (Cth).

What this means:

• The transfer itself doesn't trigger CGT. No tax payable at the point of transfer.
• The receiving party inherits the original cost base — meaning when they eventually sell to a third party, CGT is calculated from the original purchase price and date, not the value at transfer.
• CGT applies on the eventual sale to a third party — calculated against the original cost base.

What this means in practice

For investment properties, this is an important consideration. The eventual sale by the receiving party can trigger substantial CGT — calculated on the gain from the original purchase, even though they only effectively “owned” the property from the date of transfer.

For primary residences, the main residence exemption typically applies on eventual sale, meaning the CGT exposure is much smaller (or nil) provided the property has been the main residence throughout.

Where the rollover doesn't apply

The rollover does not extend to:

• Transfers into or out of discretionary trusts
• Transfers to third parties (not the spouses)
• Some specific asset types (e.g. some employee share schemes have their own CGT framework)

If property is to be transferred to a trust structure as part of the settlement, the CGT consequences need to be separately considered and tax specialist advice is recommended.

How long does the transfer take?

The conveyancing timeline depends on:

• How quickly the settlement agent is engaged after the orders are sealed
• Whether financing needs to be arranged (refinance or new mortgage)
• The responsiveness of the parties and their lenders
• Whether cross-collateralisation (see below) needs to be unwound

Typical timeline

• Single property transfer with refinance — 30 to 90 days from sealed orders to settlement
• Single property transfer without refinance (e.g. cash purchase, or where the property is going to one party who already owns it outright) — 30 to 60 days
• Multiple properties — longer. A 90-day window with a further 90-day extension (giving six months total) is common for multi-property settlements

Standard timeframes in consent orders

Consent orders typically specify a window for the property transfer to be completed:

• 90 days is the most common single-property timeframe
• 60 days is also common for simpler matters
• An automatic extension clause (a further 60 or 90 days) is usually included so that if something goes wrong close to the deadline, there's additional time without needing to return to court

What happens if the transfer can't be completed in the specified time

Most consent orders include an automatic extension mechanism — additional time available if the initial period isn't sufficient. If neither the original period nor the automatic extension is enough, the parties can agree to a further extension by correspondence.

In contested situations where one party refuses to cooperate with the transfer, the default sale clause (if included) would be triggered — requiring the property to be sold and the proceeds divided. (See the consent orders FAQ for the default sale clause.)

Refinance — getting the mortgage into one name

Most family-home transfers involve a refinance. The party retaining the property takes out a new mortgage in their sole name; the joint mortgage is discharged; the departing party is released from the loan.

Why refinancing matters

Without a refinance, both parties remain legally liable to the bank for the mortgage, even after the title has transferred. The bank can pursue either party for repayment, regardless of who is now living in the property or who's named on the title alone.

The retaining party's indemnity clause in the consent orders (or BFA) protects the departing party between the parties — but the bank isn't a party to those orders. The bank's release of the departing party only happens through refinance.

Refinance timing

The refinance has to be lined up with the conveyancing. The retaining party needs to:

1. Obtain bank pre-approval (which can be done in parallel with the consent orders process)
2. Apply formally for the loan once orders are sealed
3. Provide the consent orders to the bank as evidence of the change in circumstances and the source of equity
4. Settle on the new mortgage and the title transfer simultaneously

Bank pre-approval in parallel

You don't have to wait for the orders to be sealed before applying for pre-approval. Pre-approval is conditional only — the actual loan can't settle until the sealed orders are in hand — but having pre-approval ready reduces delay once the orders arrive.

The retaining party should engage a mortgage broker or directly with their preferred bank as soon as the consent orders application is filed.

What if the retaining party can't get a refinance?

This is the situation the default sale clause is designed for. If the retaining party can't refinance within the agreed window, the property is listed for sale and the proceeds divided. Most consent orders include an automatic extension and a fallback default-sale mechanism so this scenario is handled without returning to court.

If both parties realised at the outset that refinancing was unlikely to succeed, the settlement structure might have been built around a sale rather than a transfer. This is worth raising with your lawyer at the drafting stage if there's any doubt about the retaining party's borrowing capacity.

Cross-collateralisation — the often-forgotten complication

This is the issue that catches a lot of separating couples by surprise.

What it is

Cross-collateralisation occurs when a single bank loan is secured over more than one property. If you bought a second property using equity in the first as security, both may be cross-collateralised under one loan.

This is more common than people realise. Many investment-property buyers have been encouraged by their bank to use the equity in their family home as additional security for the investment loan — which means the bank has security over both properties, even though only one of them is the investment.

Why it matters at separation

When the properties are divided between parties — one keeps the family home, the other keeps the investment property, say — the cross-collateralisation must be formally unwound by the bank. The properties need to be refinanced or restructured so that each property has its own standalone security arrangement.

If this isn't done, the bank still has security over both properties, regardless of who owns each. Selling the investment property might trigger an issue with the loan on the family home, or vice versa.

Who handles it

The settlement agent works with the lender to unwind the cross-collateralisation. The actual mechanics depend on the bank and the specific loan structure.

What it does to the timeline

Cross-collateralisation can extend the settlement timeline by weeks. The unwinding requires bank cooperation, fresh credit assessments (potentially), and coordination across multiple property settlements. If you have a cross-collateralised mortgage, flag it with your conveyancer at the outset so they can plan for it.

How to find out if you have cross-collateralisation

Ask your bank. Check your loan documentation. If the loan documents reference multiple properties as security for a single loan, you're cross-collateralised. Online banking usually shows a single loan account secured over multiple property addresses.

Electronic settlement — PEXA

In most Australian jurisdictions, property transfers are now completed electronically through PEXA (Property Exchange Australia). PEXA allows settlement agents and conveyancers to transfer titles online without exchanging paper documents.

Benefits of PEXA settlement

• Significantly faster than traditional paper settlement
• All parties (buyer, seller, banks, conveyancers) can be in different physical locations
• Settlement happens at a defined time on a defined day
• Reduced risk of paper documents being lost or delayed

For most modern family-law transfers, PEXA is the default. The conveyancer manages the PEXA workspace and coordinates the parties.

Queensland — electronic title certificates

In Queensland, electronic title certificates are available through Queensland Titles Online, which integrates with the PEXA process.

Where paper settlement still happens

Some specific transactions (older mortgages, certain title structures, some specific lender requirements) may still require paper settlement. The conveyancer will tell you if your matter is one of those.

What it costs

Conveyancing fees vary by state and complexity, and are set by the conveyancer or settlement agent — not by us. Get a quote at the outset from your chosen conveyancer.

The party obligated to pay for the transfer is typically specified in the consent orders. Common arrangements:

• The retaining party pays — most common, since they're the one benefiting from the property
• Cost shared equally — sometimes agreed where the parties want a fully balanced division
• Multiple-property settlements — each party pays the conveyancing for the property they're receiving

Disbursements

On top of the conveyancer's fee, there are government disbursements:

• Land titles office lodgement fees
• Certificate of title fees (where required)
• Any nominal stamp duty under the family-law exemption (a small administrative fee — varies by state)
• Bank discharge and registration fees (which are usually charged separately by the bank)

Bank fees

Bank fees for the discharge of an existing mortgage and the establishment of a new one are separate from the conveyancing fee. Amounts vary significantly by lender and the type of loan — ask your bank or broker for the specifics.

These bank fees are paid by the party who's taking out the new mortgage and getting the existing one discharged.

What happens if there's negative equity?

If the property sale doesn't cover the outstanding mortgage:

• The shortfall is a joint liability of both parties unless the consent orders or BFA specify otherwise
• An order can be included in the consent orders specifying how a shortfall is to be shared (typically equally, or in proportion to ownership)
• Without specific orders, both parties remain liable to the bank for the shortfall

This isn't common in normal market conditions but can happen in falling markets or where the property has been recently purchased.

Listing the property for sale — timing

The firm's general recommendation: wait until the consent orders are sealed before listing the property for sale.

If the property is listed and sold before the orders are in place:

• The settlement proceeds need to be held in a controlled account — either in the firm's trust account or in a two-to-sign (joint) account requiring both parties' signatures for any withdrawal
• Releasing the proceeds to one party before the orders are made creates risk if the agreement later falls through
• The asset pool snapshot at the date of orders is more complex (a property that was there at the start may now be cash)

For most matters, holding off on listing until the orders are sealed is the cleaner approach. The exception is where the property is being sold (not transferred to one party) and the parties want to capture market timing — in which case proceeds are held in trust pending the orders.

Special situations

Transferring an overseas property

Australian consent orders bind the parties personally — but they don't have direct effect on foreign land title registries.

An order requiring one party to transfer overseas property is enforceable as a personal obligation — the party ordered to transfer must take whatever steps are necessary under the local law of that country. Separate legal action in the foreign jurisdiction is typically required.

The Australian orders provide the legal basis and the personal obligation, but they don't automatically change the title in another country. For specific countries (NZ, UK), the steps are usually relatively straightforward but still require local legal advice.

Flag any overseas property at intake so we can plan for it.

Transfers to a trust or company

Where the receiving party wants to take the property in a trust structure or a company name (rather than personally), the stamp duty exemption and the CGT rollover may not apply. This is a specialist tax-and-conveyancing situation — get advice before finalising the structure.

Foreign nationals

Transfers involving foreign nationals may require additional declarations (e.g. a foreign-transfer declaration confirming foreign ownership status). The conveyancer manages this; it's a documentation question, not usually a structural barrier.

Common questions

Do I need to be there in person at settlement?

Usually no. With PEXA, settlement happens electronically and the parties don't need to physically attend. The conveyancer handles it on your behalf.

What if the bank delays the refinance?

Bank delays are one of the most common reasons settlements run past their target dates. Most consent orders include automatic extensions to absorb this. If the delay is significant, the parties can agree to further extensions by correspondence, and the conveyancer keeps both sides updated.

Can I rent out the property during the transfer period?

Possible, but complicated. If the property is being transferred to one party who will be living there, renting it during the transfer period doesn't usually make sense. If the property is going to be sold, renting it short-term is possible but introduces tenancy considerations. Talk to your conveyancer about the practical implications.

What if my former partner won't sign the transfer documents?

The consent orders direct the transfer; non-cooperation by the other party isn't supposed to be an option. In practice, conveyancers have processes for dealing with uncooperative parties, including (in some circumstances) seeking court orders that authorise the transfer to proceed without that party's signature. If you're hitting this problem, talk to the conveyancer and your lawyer.

What about my super split — is the conveyancer involved?

No. The super split is handled directly between the family law firm and the super fund. The conveyancer only handles real-estate transfers. The super split runs in parallel and completes on its own timeline.

Who Lawcaptain recommends as conveyancers

We've worked with conveyancers in most Australian states and can refer you to a trusted provider. The right conveyancer for your matter depends on:

• The state where the property is located
• Whether refinancing is involved
• The complexity (cross-collateralisation, foreign nationals, trust structures)

Ask us at the consent orders or BFA engagement stage if you'd like a referral. There's no obligation to use our recommendation — you can choose any qualified conveyancer.