Legal & Tax Considerations for Expat Buyers

I’m buying with a foreign (non-citizen) spouse/partner – will we need FIRB approval or face foreign buyer stamp duty?

This is a common scenario, and it has a couple of parts to consider:

  • FIRB Approval: The good news is that if you (the Australian) are buying the property jointly with your foreign spouse as a married couple (or de-facto partners), you generally do not need FIRB approval. The Australian citizen status essentially covers the purchase. FIRB provides exemptions for purchases made jointly with an Aussie spouse. So you won’t have to apply for permission to buy your home. It’s important that the title will include the Australian partner; if the property were to be solely in the foreign partner’s name, FIRB approval would be needed. But in a typical joint purchase as a couple, you’re clear on FIRB.
  • Foreign Buyer Stamp Duty Surcharge: This is where there is a financial impact. Most Australian states (NSW, VIC, QLD, WA, etc.) impose an additional stamp duty surcharge on property purchases that involve a “foreign purchaser.” If your spouse is not an Australian citizen or PR, then their share of the purchase usually triggers this surcharge. The surcharge rates vary by state but are often around (6% to 8% of the purchase price). For example, in New South Wales, the foreign buyer duty is 8%. If you’re buying a $1,000,000 property together, the foreign partner’s half might incur the surcharge, which can be tens of thousands of dollars extra. Some states calculate it on the full property value regardless of the split. Notably, New South Wales has had rules that even Australian permanent residents living overseas could be deemed “foreign” for the surcharge unless they meet certain residency conditions, so it’s worth checking the latest criteria in the state you’re buying. Generally, an Australian citizen spouse will not pay the surcharge on their share, but the foreign spouse will. It means your overall stamp duty bill will be higher than if both of you were Aussies. We strongly advise consulting your conveyancer on how the calculations will work.
  • Land Tax Surcharges: In addition to stamp duty at purchase, states like NSW and Victoria also have annual land tax surcharges for foreign owners. If your partner’s name is on the title and they are considered a foreign owner, each year there may be an extra land tax percentage applied. This primarily matters if the property is an investment (since your own home usually has a land tax exemption, except perhaps for the foreign owned portion in some cases). Again, specifics vary by state but be aware that holding a property with a foreign person could bring ongoing costs.
  • Financing Implications: Most Australian banks will still lend on a joint purchase between an Aussie and a foreign citizen, especially if married. However, a few mainstream lenders might treat the loan as a “non-resident loan” because one borrower isn’t a citizen/PR, which could limit the choices. Many lenders, though, are fine as long as one borrower is Australian... In more complex scenarios where mainstream banks are not accommodating (for example, the foreign spouse doesn’t have Australian PR and their income is needed but in a currency some banks won’t use), there are specialist lenders and overseas banks (like an Australian banks’ international arms or local banks in Singapore/HK that do Australian loans) that can step in. We will find a solution so that financing is possible for you and your partner.

In summary, no FIRB hassle when buying with a foreign spouse if you’re Australian, but budget for extra stamp duty. It’s wise to get tailored advice on the exact costs in the state you’re purchasing. We often work alongside tax advisors or conveyancers to help our clients understand the impact. If the surcharge is prohibitively high, some couples consider putting the property solely in the Australian partner’s name (to avoid the surcharge entirely) – but that has its own legal and financial implications, so discuss thoroughly before deciding. We can introduce you to experts if needed. The key point: being married to an Aussie lets you skip FIRB, but the taxman will still take a cut for the foreign person’s involvement.

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