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I have a property in Australia ...

I have a property in Australia in just my name and I want to give half to my new wife. Is there any problem doing this?

In Australia there is no gift duty so the actual transfer of the value of a propertyfrom spouse to spouse does not attract a direct charge.  This is true evenwhen you transfer to your children,

In Australia there is no gift duty so the actual transfer of the value of a property from spouse to spouse does not attract a direct charge.  This is true even when you transfer to your children, relatives or even friends.

What you need to be careful about though, is the taxation and stamp duty issues.

Capital Gains Tax

Under our Federal Laws when an asset is transferred to another person for whatever reason.  Where the transfer is done to a relative for little or no consideration, the law provides that a taxable sale has occurred at the market value of the asset regardless of what is paid.

So if you do transfer property to your wife (or family) then you will be taxed as if it was sold normally.  This could be an expensive and unnecessary cost.

There is an exception if the property is the family home at the time of transfer and is transferred from spouse to spouse.  This effectively eliminates the Capital Gains Tax on the transfer that would otherwise have been payable.

Note this is only if you are living in the house at the time and relates to the transfer of up to one half from the sole holder to their spouse, so the only time it is sensible to transfer a share of the property to your spouse is when you are actually living in it.

Stamp Duty

Each State of Australia levies a transaction charge, referred to as Stamp Duty, on the transfer of property.

This includes real estate transfers and there is usually a fee of 2-6% of the value of the transaction.  Similar to the Federal Capital Gains Tax, this will be levied at the market value for related parties regardless of the amount of the actual transaction.

All states have a similar exemption from duty available when transferring from one spouse to the other, some even allowing a 100% share to be transferred, and they usually require the property to be the main residence at the time however some States do not require this to be a pre requisite.

You will need to have a solicitor or settlement agent handle the transfer and they should be able to confirm if any duty is payable in your situation.

You also need to remember to gain the approval of any lender that may have a mortgage on the property as they will need to give their consent and you will likely need to re apply for a new loan as the names will be changing from the original mortgagee which will incur additional costs and fees as well.

If you are considering transferring a portion of your property you should be sure to take professional advice as each case is different and may have inadvertent implications including the tax and stamp duty implications.  In the great majority of cases the transfer would be unnecessary and should not be undertaken until at least you are living in the property as your home to ensure the exemptions are available.

All information provided is of a general nature only and does not take into account your personal financial circumstances or objectives. Before making a decision on the basis of this material, you need to consider, with or without the assistance of a financial adviser, whether the material is appropriate in light of your individual needs and circumstances. This information does not constitute a recommendation to invest in or take out any of the products or services provided by SMATS Services (Australia) Pty Ltd or Australasian Taxation Services Pty Ltd.

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