Transferring Property to Your Spouse (Queensland): A practical, plain-language guide

Transferring property to a spouse is a common legal step taken for family, financial and tax reasons. In Queensland the process is straightforward in principle but shaped by multiple pieces of law and practice — state duties (formerly “stamp duty”), land title registration rules, national tax rules (Capital Gains Tax) and the electronic conveyancing environment (PEXA). This blog explains why people transfer property to spouses, when it’s done, who needs to do it, the documents you’ll use, whether you need a lawyer, valuation and duty issues, electronic lodgement (PEXA), deed questions, and the capital-gains outcomes — including what happens later if the property is sold to a third party.

Why do people transfer property to a spouse?

Common motivations include:

Relationship breakdowns / property settlements. When couples separate they commonly re-title property so one partner keeps the home or investment and the other is transferred out as part of the settlement.

Estate planning and ownership structure. Couples sometimes change title to ensure the surviving partner receives the property smoothly, or to move from joint tenants to tenants-in-common for estate planning.

Gifting or restructuring within the family. One spouse may gift property to the other for personal or tax reasons.

Simplifying finances or refinancing. A transfer may be done so a partner can borrow against the property or be removed from mortgage liability.

Tax planning in limited, well-advised situations.

Each reason has different legal and tax consequences. For example, transfers following a formal property settlement (consent orders or binding financial agreement) often attract special reliefs; informal gifts do not. For the special tax/duty rules to apply you usually need the transfer to be documented properly. 

When is a transfer to a spouse commonly done?

Typical moments are:

1. Immediately after separation, when one party seeks to formalise a property settlement by court order or binding financial agreement.
2. During estate planning or before/after marriage.
3. When one spouse wants to remove themselves from the title prior to selling, refinancing or to restructure ownership.
4. Sometimes after the death of a partner (by operation of wills/estates) — though those are different technical processes.
5. If the transfer is part of a separation settlement you should act promptly to formalise the agreement (consent order, financial agreement or property settlement) because specific exemptions and rollovers depend on the transfer being made under those formal instruments. 

 
Who needs to consider transferring property to a spouse?

Any spouse or de facto partner who will benefit from the change of legal ownership — e.g., the person who will live in the home, the person assuming mortgage responsibility, or the spouse being removed from title.

People performing estate planning who want ownership aligned with wills.
Separating couples who want to finalise property settlement outcomes.

Lenders and mortgagees — because transfers affect security interests.

If you’re unsure whether you should transfer title (vs other options like a caveat, mortgage discharge, or settlement by sale), get professional advice — consequences can be long-lasting.

Do you require a lawyer or conveyancer?

Short answer: not strictly mandatory, but strongly recommended.

Why hire one?

Titles Queensland lodgement requirements — transfers must be registered correctly with Titles Queensland and small errors can cause delays or refusal. Most people use a solicitor or licensed conveyancer to prepare and lodge the transfer. Titles Queensland’s guides emphasise that transfers and related documentation must meet formal requirements. 

Duty and tax consequences — incorrect duty declarations or missing exemptions can create unexpected bills (or penalties). A lawyer/conveyancer will check eligibility for matrimonial exemptions, prepare documentation needed for rollovers, and ensure correct duty treatment.

Family law complexity — if transfer arises from relationship breakdown, the transfer should be coordinated with property settlement orders/agreements prepared by family lawyers to ensure both the Queensland Revenue Office (QRO) and the Australian Taxation Office (ATO) recognise the settlement. 

PEXA and electronic settlements — conveyancers/solicitors will manage electronic lodgement and the QRO online declaration.

If you’re comfortable with conveyancing and the matter is very simple, a licensed conveyancer may suffice; for disputes or complicated tax outcomes seek a solicitor experienced in family/ tax law.

Documents you will typically need

Transfer form (the prescribed form for Queensland title transfers).
Evidence of identity for parties (certified ID).

Certificate of title or current title searches (often obtained by your conveyancer).

Mortgage discharge or lender consent if the property has encumbrances.
Valuation or market evidence (if the transfer is not at arm’s length or is a gift, QRO may require a valuation).

Family law orders / binding financial agreement or consent orders if the transfer is part of a relationship breakdown settlement (these documents underpin certain duty and CGT rollovers).

Deed of Gift — optional but sometimes used to record an outright gift between spouses (the transfer instrument for Titles Queensland is the operative document; a separate deed can provide additional evidence of intention). 

Do you need a Deed?

Technically, the transfer instrument lodged with Titles Queensland is the document that changes title. A separate Deed of Gift or Deed of Family Arrangement is not always required but can be useful:

As evidence of the parties’ intention (e.g., that the transfer is a gift or part of a family agreement).

To support claims for duty exemptions or to satisfy lenders.

To clarify whether any consideration was provided.

If the transfer is part of a family law settlement, the Family Law consent order or binding financial agreement will usually be the key document, not a standalone gift deed. Your lawyer will advise whether an additional deed is needed for your scenario. 

Do you need to value the property?

Yes — valuations matter whenever the transfer is not an arm’s-length sale at market price.

Queensland Revenue requires that the dutiable value (for transfer duty) is the greater of the consideration and the unencumbered market value. When there is no consideration (a gift) or the parties are related, QRO will often require an independent valuation so it can assess duty correctly. The public ruling DA505 explains how valuations are used. 

Practical points:

If you’re transferring at nominal consideration (e.g., $1) QRO will expect a valuation and will assess duty on the market value unless a specific exemption applies.

Valuations for transfer duty purposes should be prepared by an appropriate valuer and comply with QRO’s expectations (agent CMAs are sometimes acceptable for lower-risk transfers but get professional guidance).
 
Stamp duty (transfer duty) implications: Stamp duty (now called transfer duty) is a state tax and one of the most important financial consequences of transferring property.

Key rules for Queensland:

Duty normally applies to transfers even if no money changes hands — the dutiable value is often the market value if the consideration is nil or less than market. 

Spousal / matrimonial exemptions: Queensland provides specific exemptions or concessions for transfers that give effect to court orders or binding financial agreements under the Family Law Act or equivalent state instruments. If the transfer is made under those qualifying instruments it can be exempt from transfer duty. Separate “home or property owner” exemptions may also apply in limited circumstances. 

How to claim: even when an exemption applies you usually must make the relevant declarations and lodge through QRO Online (or have your conveyancer do so). If you are a self-assessor you should refer to the matrimonial exemption toolkits. 

Bottom line: don’t assume a transfer to your spouse is duty-free. If the transfer is connected to a property settlement under the Family Law Act, exemptions often apply — but the right paperwork and timing are vital.

Electronic lodgement — do you need PEXA?

Yes — in Queensland most transfers are lodged electronically through PEXA (the national electronic conveyancing platform). PEXA is the usual route for settlements and lodgement of transfers in QLD, and practitioners will link the transfer to the QRO transfer duty claim process. QRO requires the representative of the transferee to complete the transfer duty claim in QRO Online even if no duty is payable. 

What this means for you:

Your solicitor/conveyancer will typically prepare the transfer, create the workspace in PEXA, and lodge on your behalf.

Electronic lodgement speeds processing and is now the standard; paper lodgement is rare and often only for very exceptional cases.

 
Capital Gains Tax (CGT) implications

CGT is a Commonwealth tax administered by the ATO. Whether a transfer to a spouse triggers immediate CGT depends on the reason for the transfer.

Two common scenarios:

Transfers due to relationship breakdown (marriage/de facto separation)

Relationship breakdown rollover: If the transfer is made because of the breakdown of a marriage or de facto relationship and it is the result of a court order or a binding financial agreement / consent order, the ATO provides for a rollover — meaning no immediate CGT liability arises at the time of transfer. Instead, CGT is deferred: the recipient inherits the original cost base and any future CGT may be triggered when the recipient later disposes of the asset. The ATO explains that the rollover applies when transfers are under qualifying agreements and, if it applies, you must use it — the gain is essentially transferred with the asset. 

Transfers outside relationship breakdown (gifts, restructure)

If the transfer is a gift or part of restructuring not because of a relationship breakdown, the ATO’s market value substitution rules generally treat the transfer as a CGT event where the donor is treated as having disposed of the asset for market value. The donor may therefore realise a capital gain or loss at the time of transfer based on market value vs their cost base. 

Practical implication: if the roll-over applies because the transfer is under a family law settlement, the recipient takes the asset with the donor’s cost base and the donor does not realise a taxable gain at that time. If the transfer is a gift outside that context, the donor could face an immediate CGT bill.

 
What if the property is sold to a third party later — how is CGT handled?

This is a crucial point for both donor and recipient.

If the relationship breakdown rollover applied at transfer: the recipient (the spouse who received the property) will be treated as the owner for CGT purposes when they later sell. The recipient’s cost base for calculating any future capital gain is generally the donor’s original cost base (i.e., the historical acquisition cost) because the rollover defers the gain.

When the recipient later sells to a third party, CGT is calculated on the sale price minus that inherited cost base (subject to ownership/usage rules such as main residence exemption). The deferred gain is crystallised on that later sale.

The ATO guidance is clear that if rollover applies, the tax eventually arises on later disposal by the transferee. 

If the transfer was a gift or non-rollover transfer: the donor may have already been treated as disposing at market value and paid CGT at time of transfer (or at least reported a gain). The recipient’s cost base will generally be the market value at transfer (or other ATO-prescribed amount), and when the recipient later sells to a third party CGT is calculated using that cost base.

Two important exceptions/notes:

Main residence exemption: if the property is (or becomes) the recipient’s main residence and the conditions for the principal place of residence exemption are met, some or all of the CGT may be exempt when sold. The interaction of the rollover and main residence rules can be complex — seek ATO guidance or tax advice.

6-year absence rule and other concessions: various CGT concessions can affect outcomes.