The critical requirement in every state
Without formal Consent Orders or a Binding Financial Agreement (BFA), there is no stamp duty exemption in any state. An informal agreement between you and your ex does not qualify. Formalising your property settlement is not just legally important - the stamp duty savings alone can be tens of thousands of dollars.
State-by-state comparison
| State | Legislation | Exemption | De Facto? | Key Requirement |
|---|---|---|---|---|
| NSW | s68, Duties Act 1997 | Full exemption | Yes | Apply via form ODA070. Refund available if duty already paid. |
| VIC | s44(1), Duties Act 2000 | Full exemption | Yes | Complete Digital Duties Form via SRO. Transfer must be solely because of relationship breakdown. |
| QLD | Duties Act 2001 | Full exemption | Yes | Court order must be issued BEFORE the property transfer. This timing requirement is unique to QLD. |
| WA | s128-133, Duties Act 2008 | Nominal ($20) | Yes | Nominal duty charged (typically $20) rather than full exemption. De facto uses Family Court Act 1997 (WA). |
| SA | s71CA, Stamp Duties Act 1923 | Full exemption | Yes | If not yet divorced, need s71CA Statutory Declaration plus Separation Declaration. |
| TAS | Duties Act 2001 | Full exemption | Yes | Also covers motor vehicle transfers. Accepts Relationships Act 2003 (Tas) agreements. |
| ACT | Duties Act 1999 | Full exemption | Yes | Also covers Domestic Relationships Act 1994 transfers (requires independent legal advice certificates). |
| NT | s91, Stamp Duty Act 1978 | Full exemption | Yes | Within 12 months after transfer, a court order or BFA must be finalised. Unique timing requirement. |
What you need to claim the exemption
Regardless of which state you are in, you will need:
- Consent Orders approved by the Federal Circuit and Family Court of Australia (or WA Family Court), OR
- A Binding Financial Agreement (BFA) under the Family Law Act 1975, prepared with independent legal advice
- The relevant application form from your state's revenue office
- Evidence of the relationship breakdown (divorce order, separation declaration, or statutory declaration)
How much could you save?
Example savings by state (on a $750,000 property transfer)
| State | Normal Stamp Duty | With Exemption | You Save |
|---|---|---|---|
| NSW | ~$29,000 | $0 | $29,000 |
| VIC | ~$40,000 | $0 | $40,000 |
| QLD | ~$19,600 | $0 | $19,600 |
| WA | ~$29,000 | $20 | $28,980 |
| SA | ~$32,000 | $0 | $32,000 |
| TAS | ~$28,000 | $0 | $28,000 |
| ACT | ~$25,000 | $0 | $25,000 |
| NT | ~$31,000 | $0 | $31,000 |
Approximate figures for illustrative purposes. Actual duty varies by property value and state calculator.
Common mistakes to avoid
- Transferring before getting court orders (especially in QLD) - In Queensland, the court order must be issued before the property transfer. If you transfer first, you may not qualify for the exemption.
- Not applying for the exemption - The exemption is not automatic in most states. You need to submit an application to your state's revenue office.
- Relying on an informal agreement - A handshake deal or even a written agreement that is not a BFA or Consent Orders will not qualify for the exemption.
- Missing the NT's 12-month window - In the Northern Territory, you must obtain court orders or a BFA within 12 months of the property transfer.
- Forgetting to claim a refund (NSW) - If you already paid stamp duty on a separation transfer in NSW, you can apply for a refund.
How we help
As separation finance specialists, we coordinate the timing of your refinance with your property transfer to ensure you qualify for the stamp duty exemption in your state. We work alongside your family lawyer to align the legal and financial timelines.