A step-by-step guide to the conveyancing process after final orders

Have you achieved Final Orders, either by way of consent or by Court Order? Then now comes the next phase, which is finalising the conveyancing process. 

By Annabel Murray, Accredited Family Law Specialist at Australian Family Lawyers, Sydney.

This process involves transferring the property into your sole name and paying out your former partner. It may be that no money needs to change hands, in which case the process will be simplified.

Several steps are involved in the conveyancing process, which differs depending on which state the property is in, which we’ll outline below.

Unconditional approval

The first step, regardless of which state the property is in, is to have your finance approved with your bank as “unconditional” so that you are ready to proceed as soon as the Orders are made.

In most cases, the Orders will require you to complete the property’s payment and transfer within a certain time frame. As the banks are currently taking longer than usual to complete their loan processes, it is imperative that you finalise the approval of your loan as soon as possible, even before the Orders are made. 

You may need to contact the bank many times along the path to ensure the process does not stall.

Once the finance is secured, the steps which follow are:

1. Preparation of a Discharge Authority with the bank (if you are required to pay out a mortgage as part of the Orders). 

If you are paying out the joint mortgage and then obtaining your own mortgage, this can be done with the same bank or through a different financial body. Either way, your loan needs unconditional approval, preferably before the orders are made.

2. Preparation of a transfer document 

This document will affect the transfer from joint names to your sole name.

3. Stamp duty requirements

There are also stamp duty requirements, depending on which state we are dealing with. As the property transfer is pursuant to an order under the Family Law Act, you are entitled to an exemption of stamp duty. To ensure the exemption is granted, the correct forms must be completed. For example:

• In NSW, several forms need to be completed for the Office of State Revenue, including verification of identity requirements. You must provide the required identification documents to verify your entitlement to the stamp duty exemption.
• In the ACT, this verification process is done by way of a Seller or Buyer Verification Declaration, which, together with your verification of identity documents, are submitted to the ACT Revenue Office. You will also need to sign various forms for the verification process to be completed.

4. Pexa settlements and other forms and procedures

Depending on which state the property is in, other forms/procedures are required to complete the transfer of property. For example:

• NSW settlements are done via e-conveyancing, which utilises an electronic settlement platform called PEXA. The settlement process is entirely electronic, and a third party PEXA agent is required to complete this part of the process. Infotrack is an agency that manages electronic settlements. They charge a modest fee of $165.00 to act as the PEXA Agent. PEXA also charges all users the sum of $116.60 to use the PEXA platform.
• An ACT settlement still involves a paper settlement as the ACT has not yet implemented the e-conveyancing PEXA platform. Settlement in the ACT involves the physical exchange of legal documents to effect the transfer of property. Representatives from your bank and the respective Solicitor’s offices meet at the “settlement rooms” to complete this exchange of documents. You are not required to attend the settlement.

Once the settlement is complete

Once the settlement is completed, your bank will proceed to lodge the legal documents at the Land Titles Office for registration. These legal documents, such as a Transfer, Discharge of Mortgage and Mortgage, will transfer the property into your sole name and register your new mortgage on title. The bank will hold the title deed as security until the mortgage has been repaid.

These conveyancing processes are often complicated and involved, but in the hands of someone familiar with dealing with banks and various forms, it is a challenging but rewarding exercise. 

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