# Separation and the Queensland family home: duty, tax and the title
When a couple separates and one keeps the home, three offices are involved. What the duty exemption needs, how the tax rollover works and what the title registry asks for.
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When a relationship ends, the home is usually the largest thing the two people own, and often the hardest to talk about. One of them may want to stay. Both may want to sell and start again. Either way, the decision sets off a chain of paperwork that has little to do with who was right and a great deal to do with which document the couple holds when the transfer is signed.
In Queensland, moving a half share of a house from one name to the other is a dutiable transaction like any other, unless it gives effect to one of a short list of orders and agreements. The federal tax system makes the same distinction, with its own list.
This guide follows the home through each of those offices: the Queensland Revenue Office for transfer duty, concessions and land tax, the Australian Taxation Office for capital gains tax, and Titles Queensland for the register. It describes the general rules as those bodies publish them. The three do not move in step, and a document that satisfies one office may not satisfy another. How a property pool is divided is a question of family law and is not covered here.
$248.04Titles Queensland fee to lodge a transfer, one lot
28 daysto report that a home concession no longer fits
2 yearsde facto relationship length under a recognised agreement
Titles Queensland fee schedule for 2026-27; Queensland Revenue Office guidance on home concessions and on de facto relationship instruments.
## What the Family Law Act exemption covers
The Queensland Revenue Office describes two exemptions on its page about matrimonial transfers, last updated on 13 May 2026.
The broader one is the Family Law Act exemption. Transactions that give effect to a court order or a financial agreement made under sections 90, 90L or 90WA of the Family Law Act 1975 are not subject to transfer duty. Court orders must be made under Part VIII of that Act, which deals with married couples. Financial agreements must be made under Part VIIIA or Part VIIIAB, as the case requires. Consent orders, made by the court at the couple's joint request, are court orders for this purpose: the Revenue Office's own example involves them.
The Revenue Office sets four requirements for the sealed order or the agreement. It must be valid. It must be dated before the transaction. It must identify the property being transferred. And it must say clearly who the property is transferred to. An order or agreement made under another jurisdiction's law is not exempt under these provisions.
For financial agreements, the Revenue Office's guidance for self-assessors adds detail. The agreement must set out how property or financial resources are to be dealt with if the relationship breaks down. It must carry a signed separation declaration, inside the agreement or as a separate document, and signed confirmation that both parties received independent legal advice. The parties must be separated, and the transaction must be carried out in line with the agreement.
The second exemption is narrower and older. Under section 424 of the Duties Act 2001, a transfer made under a matrimonial instrument, meaning a divorce order, a decree of nullity or a decree nisi, is exempt when four things are true: the marriage has been dissolved or annulled, the property passes from the former spouse to the person claiming, the property is that person's principal place of residence, and the transfer is dated after the proceedings to end the marriage began.
Instruments the Revenue Office accepts for the exemptionTransfers after a marriage or de facto relationship ends
Instrument
Made under
What must be shown
Court order, including consent orders
Family Law Act 1975, Part VIII, or Part VIIIAB for de facto couples
Sealed, dated before the transfer, names the property and the transferee
Financial agreement
Family Law Act 1975, Part VIIIA or Part VIIIAB
Separation declaration and legal advice confirmations, both signed
Recognised agreement or court order
Property Law Act 1974, section 266 or Part 19
A de facto relationship of at least 2 years, properly witnessed
Divorce order or decree
Duties Act 2001, section 424
Home passes from the former spouse and is the claimant's residence
Queensland Revenue Office: matrimonial transfer duty exemptions page and the self-assessor toolkits for sections 90L, 90WA and 424.
An exempt transfer is still lodged and still assessed. The Revenue Office asks for a copy of the sealed order or the agreement, a dutiable transaction statement on Form D2.2, an identity details annexure for each transferor and transferee who is not an Australian citizen, and the Titles Queensland transfer and property information forms.
The detail of who receives the property matters. In one Revenue Office example, a transfer to a company controlled by one spouse was not exempt because the financial agreement provided for a transfer to her personally. In another, a transfer to a spouse's trustee company was exempt because the consent orders required exactly that.
## De facto couples and civil partners
De facto couples have two routes in the Revenue Office's material.
The first is the Family Law Act route already described. Part VIIIAB of that Act deals with de facto financial matters, and the Revenue Office's section 90WA toolkit, updated on 13 January 2026, applies the same conditions to de facto court orders and financial agreements as apply to married couples.
The second is a Queensland route. Under section 422 of the Duties Act 2001, a de facto relationship instrument includes a recognised agreement under section 266 of the Property Law Act 1974, a court order under Part 19 of that Act, and instruments made under either. The agreement or order must be dated before the transaction, be properly witnessed, give clear direction and specify the property. The partners must have lived in a de facto relationship for at least 2 years. And the transaction must take place between the partners in their own names.
The two-year test is applied strictly. In the Revenue Office's examples, a couple whose recognised agreement recorded an 18-month relationship did not qualify, while a couple with one year and seven months together, followed by a later six-month reconciliation, did.
Civil partnerships are less clearly signposted. The Revenue Office counts a civil partner under the Civil Partnerships Act 2011 as a spouse for its exemption on gifts of a share in a home between spouses, but its pages on relationship breakdown speak of marriages and de facto relationships. Which instrument a separating civil partner relies on is a question for the lawyer preparing the settlement, and it depends on the case.
## If the transfer is done informally
Some couples settle between themselves. One signs a transfer, the other takes over the loan, and no order or binding agreement is ever made. For duty purposes that is an ordinary transfer, however amicable.
Without one of the instruments in the table, none of the relationship exemptions applies. The Revenue Office is direct about the alternatives: apart from the specific exemptions it lists, there are no other exemptions for gifting residential property to family members. The spouse exemption in section 151 of the Duties Act 2001 does not fit either, because its conditions assume the opposite of a separation: after the transfer the couple must own the whole home together and it must be their principal place of residence.
Duty is then assessed on the dutiable value of the interest that changes hands. Where the price is lower than the unencumbered value of the property, which is common when one partner simply takes over a debt, the Revenue Office's forms ask for that value. The person receiving the interest may be eligible for the home concession on the share acquired if they will live there, as the Revenue Office notes in comparable examples, but a concession reduces duty rather than removing it.
The order of events is the point most often missed. The Revenue Office requires the order or agreement to predate the transaction. An agreement drawn up afterwards does not meet that requirement as stated.
> The exemption does not attach to the separation. It attaches to a document, and that document has to exist before the transfer does.
## A home concession or grant already claimed
A home concession or first home concession on the original purchase comes with conditions, and separation can cut across them.
According to the Revenue Office's page on disposal, last updated on 31 July 2026, a buyer who claimed a concession must move in within 1 year of the transfer date and must not dispose of the property within 1 year after moving in. Disposal is defined broadly: selling, leasing, or transferring part of an interest. The page says in terms that transferring part of an interest counts even under a court order.
Recent buyers
A court-ordered transfer can still count as a disposal
The duty exemption for the new transfer and the concession on the original purchase are separate matters. A transfer within the first year of occupation can reduce the earlier concession even when the transfer itself is exempt. The Revenue Office must be told within 28 days.
The consequence depends on timing. A disposal before moving in loses the whole concession. A disposal within the first year of occupation loses part of it, worked out by the day. In the Revenue Office's example, a concession worth $7,175 on a $900,000 apartment gave a daily figure of about $19.66; a disposal 100 days short of the first anniversary meant repaying $1,965.75.
Notice is given on Form D2.4 within 28 days of ceasing to qualify. The Revenue Office says prompt notice keeps interest and penalties down. It offers a separate downloadable form for people experiencing domestic or family violence.
The First Home Owner Grant has residence conditions of its own, administered by the same office. Whether a separation before those conditions are met leads to repayment depends on the dates and on who remains in the home.
## Capital gains tax: the rollover
The federal rules run in parallel. The ATO calls its relief the relationship breakdown rollover, and its pages on the subject were updated in late June 2026.
A rollover defers tax; it does not cancel it. When an asset passes between separating spouses under a qualifying order or agreement, the person giving it up makes no capital gain or loss at that point. The person receiving it steps into their shoes: according to the ATO, they later work out any gain as though they had owned the asset since the former spouse acquired it, starting from the former spouse's cost base.
The ATO's list of qualifying documents includes court orders and consent orders under the Family Law Act 1975, arbitral awards under that Act, binding financial agreements, and binding agreements under State law, which for Queensland means a recognised agreement under the Property Law Act 1974. For the agreements, three conditions apply at the time of transfer: the spouses are separated, there is no reasonable likelihood of living together again, and the transfer is made for reasons directly connected with the breakdown.
Two features surprise people. The rollover is not optional: the ATO states that where it applies, it must be used, and it is declared in the tax return. And timing follows the document. Under a binding financial agreement, which may be a contract, the event can happen when the agreement is entered into; under a court order, it happens when the asset is actually transferred.
The same transfer, with and without a qualifying documentCapital gains tax treatment as the ATO describes it
Question
Order or binding agreement
Private or informal agreement
Does the rollover apply?
Yes, and it must be used
No
Person giving up the share
No gain or loss at transfer
Reports any gain or loss in that year's return
Person receiving the share
Takes over the former spouse's cost base and ownership period
Treated as acquiring it at the time of transfer
Value used
Not relevant at transfer
Market value, if the price differs and the parties are not at arm's length
Australian Taxation Office, relationship breakdown and capital gains tax pages, updated June 2026.
The cost base the new owner takes over can grow. The ATO allows the costs of the transfer itself, such as conveyancing costs and any duty, to be added. General legal costs of the breakdown or the property settlement are excluded.
## How the main residence exemption fits
For a home that both partners lived in from the day it was bought, and that never earned income, the picture is usually simple. The ATO's own example has a spouse receiving the family home, which had been the couple's main residence since purchase; she was entitled to the full exemption when she sold.
The complications come from history. For transfers after 12 December 2006, the ATO looks at how both people used the home. The person who keeps it can claim a full exemption on sale if the former spouse used it as a main residence before the transfer, they themselves did so while they owned part or all of it, and it was not rented or used for business. If any of that is untrue for a period, the exemption is partial, calculated on days. A share already held before the breakdown is assessed separately, on that owner's own period.
A past the keeper did not choose can therefore follow the home. If the property was rented out before the couple moved in, or was an investment in one partner's name for some years, that period can count against the exemption when the keeper eventually sells.
There is a tool for the partner who moves out. The ATO notes that spouses may choose to keep treating a former home as their main residence for a period after leaving it, for up to 6 years in the cases it describes. The choice is formally made in the tax return for the year of disposal, but the ATO observes that it is often settled before the transfer, with the transferor giving a signed statement as evidence. Once made, the choice cannot be changed.
Where the transfer is informal and the rollover does not apply, the person giving up the share is in the position of any owner disposing of a home. Whether the main residence exemption covers their gain depends on the ordinary rules and on how the home was used.
## When the home is sold instead
Many couples sell to a third party and divide what is left. The tax and duty position is then much closer to an ordinary sale.
Transfer duty falls on the buyer, as in any sale, so the relationship exemptions are not needed for the sale itself.
For capital gains tax, each owner disposes of their own interest and applies the main residence exemption to their own share and their own period of living there. The partner who moved out months or years before the sale is the one for whom the absence choice described above may matter.
## Registering the transfer at Titles Queensland
The transfer between partners is made on Form 1, accompanied by Form 24, the property information form. Titles Queensland's Land Title Practice Manual sets out what the registry expects.
Where the transfer follows a court order, the consideration item on the form states the order and its date, in words to the effect that the transfer is made pursuant to an order under the Family Law Act 1975. The manual says no copy of the order is needed if the person receiving the interest is already one of the registered owners, in the same capacity, and both owners sign; otherwise a copy of the sealed order is produced. Where the transfer follows a financial agreement, the form states that it is made under an agreement under Part VIIIA or Part VIIIAB, with its date, and a complete signed copy is deposited.
Every transfer needs a duty notation, the manual says, even where no duty is payable.
From agreement to a title in one name
Order or agreementA sealed court order or a binding agreement that names the property and the person receiving it.
LenderThe existing loan is refinanced or released so the mortgage on the title can be dealt with.
Duty assessmentThe exemption is claimed on Form D2.2 and the transfer receives its duty notation.
LodgementForm 1 and Form 24 are lodged with Titles Queensland and the fee is paid.
Follow-upThe Revenue Office is told of any concession change; the rollover goes in the tax return.
On the loan, a transfer of the title does not remove anyone from a mortgage: the lender has to agree, and it assesses the remaining borrower on one income before it does. In practice the old mortgage is released and a new one registered, and in the Titles Queensland schedule for 2026-27 an instrument other than a transfer is listed at $248.04.
The transfer fee itself, from 1 July 2026, is $248.04 for one lot and $46.56 for each additional lot. An additional fee of $46.56 for each $10,000, or part of $10,000, above $180,000 applies to a transfer of a fee simple, and the practice manual says it applies only where a monetary consideration exceeds the scheduled amount. As an illustration only: a transfer stating a monetary consideration of $300,000 would be $120,000 over the threshold, which is 12 steps of $46.56, or $558.72, on top of the $248.04 base, for $806.76 in all. A transfer whose consideration is expressed as an order rather than a sum is checked against the registry's fee calculator, and the result depends on how the form is completed. A current title search costs $25.71. Law practices lodge through an electronic conveyancing platform, a subject with its own guide in this magazine.
## Land tax after the change
Land tax is assessed each year on the land a person owns, and the Revenue Office's matrimonial page carries a one-line reminder that a transfer may affect the transferee's land tax liability.
For the partner who keeps the home and lives in it, the home exemption generally continues to do its work: the Revenue Office says an exemption may apply where land is the owner's primary place of residence. It adds that for jointly owned land each owner who wants the exemption applies separately, which matters during the months when both names are still on the title but only one person lives there.
For the partner who has moved out but remains a registered owner, that share is no longer land they live on. Whether any tax follows depends on the value of everything that person owns in Queensland and on the thresholds, which are covered in the magazine's guide to land tax.
## Protective steps before agreement
Between separation and a final settlement, months can pass. Two registry steps are often mentioned in that period. Both are protective, and neither settles anything.
The first concerns couples who hold the home as joint tenants, where a survivor takes the whole property if the other dies. Section 59 of the Land Title Act 1994 allows one joint tenant to sever the joint tenancy alone. According to the Land Title Practice Manual, the transfer is made in favour of the severing owner only and states that it is a severance under section 59. The owner must give, or make a reasonable attempt to give, each other joint tenant a copy of the transfer, or written notice of the intention to sever where the document is electronic, and a declaration on Form 20 explains how that was done. After registration the owners hold as tenants in common in equal shares, and each share passes under that owner's will. Severance does not change who is entitled to what in a property settlement.
Worth knowing
Severing a joint tenancy does not need the other owner's signature
Under section 59 one joint tenant can act alone, provided the other is given a copy or notice and a declaration says so. It changes what happens on death, not the division of property.
The second is a caveat, a notice on the title that stops most dealings from being registered. It is available only to someone with an interest in the land that the law recognises, and whether a separating partner who is not on the title has such an interest depends on the facts. The mechanics are covered in the magazine's guide to caveats, and Legal Aid Queensland publishes general information on protecting property after separation until financial arrangements are complete.
Time limits apply to applications for property orders under the Family Law Act 1975, and they differ for married and de facto couples. The Federal Circuit and Family Court of Australia publishes them.