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Brisbane.Lawyer
Brisbane.Lawyer, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Lawyer of the Federal and High Courts of Australia; Lawyer of the Supreme Court of Qld
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Im refinancing my home and the partner that is on home loan

Customer Question

Im refinancing my home and the partner that is on home loan title with me at moment would like his name off it! There is no money to change hands , we have a child together so 2 yrs ago he offered to put his name on loan so i could get my home, the 2 yrs are up! Ive had quotes for $5000 plus and we need to do so much documentation that we are deciding against it!
We wanted to know is it possible for him to get a legal paper to say he is gifting his half to me without all the cost and drama of a binding financial agreement?
I have always paid for the morg and to refinance i am at 80% mark, was advised if don't do financial agreement would have to pay stamp duty?
Sonja
Submitted: 1 year ago.
Category: Australia Law
Expert:  Brisbane.Lawyer replied 1 year ago.

Hi Sonja

You can achieve the same as a BFA, without the $5k price tag by lodging consent orders with the Court.

The only point you need to be aware of, is that the Court will review the orders and assess whether they are "fair and equitable"... and what you are proposing might not qualify...

This will achieve the same outcome, as the BFA, with regard to stamp duty, etc.

Here is a link to an information pack from the Family Court on consent orders:

http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/diy-kits/kit-diy-application-consent-orders

Let me know if you need any further assistance, or need me to walk you through the process.

It is possible to do a Deed of Gift, it would be less paperwork, but stamp duty will apply... and it will not finalise financial arrangements between you both... and this is not ideal.

I can also assist with legal services, when it is time to transfer the interest in the Property, and register it at the Titles Office.

Kind regards,

James

Customer: replied 1 year ago.
Thank you,So what if my sons father applies to the court to get his name off it, will that help me in any way, we are extremely amicable and he simply doesn't want it to cost me any money, we have nothing shared and never did so he doesn't feel he needs to share all that info such as accounts , super etc just to get his name off title? , was simply him helping me out at that time as we have a son together! Yes i would like your guidance please, the broker is just waiting for the legal papers so he can proceed with the refinance!
Expert:  Brisbane.Lawyer replied 1 year ago.

Sonya,

If you read the Consent Orders kit... you will see that you can (with a little guidance) do it yourself... and save the $5k fee... but there is no way around the paperwork.. if you want a legally binding outcome, and to save stamp duty, etc.

Extracted from the Consent Orders Kit:

You must make full disclosure of your financial circumstances. You must read Rule 13.04 of the Family Law Rules. WARNING A failure to give full and frank disclosure has serious consequences. These consequences may include: n any consent orders being set aside n you having to pay the other party’s legal costs n your being fined n you being charged with contempt of court.

As I have mentioned above the alternative (to avoid the paperwork) still involves paperwork.. but less.. ie, a Deed of Gift.. it simply states that his share in the Property is being gifted to you... stamp duty will apply, a valuation will need to be completed on the Property - for the amount of Stamp Duty to be assessed..

You may require a valuation for the refinance, anyway... ask the broker, if you can be provided with a copy to save costs...

Which way do you both want to go?

Do you want to talk it through with me over the phone - I have sent you an offer of additional service.

Please accept and rate my response.

Kind regards,

James

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