Section 422(a) of the Duties Act 2001 (the Act) provides that a recognised agreement under section 266 of the Property Law Act 1974 (the Property Law Act) is a de facto relationship instrument to the extent that it deals with de facto relationship property.
Section 422(c) of the Act provides that an instrument made under a recognised agreement is also a de facto relationship instrument if it deals with de facto relationship property.
Under section 424 of the Act, duty is not imposed on a transaction that gives effect to a de facto relationship instrument. Property settlements made outside of Queensland that have no reference to section 266 of the Property Law Act would not qualify for the exemption under section 424 of the Act and should be forwarded to us for assessment.
To determine if the exemption contained in section 424 applies, please use the flow charts below.
Recognised Agreements
Transfers
For audit purposes, you must keep:
- the recognised agreement or certified copy of the recognised agreement
- any instrument made under the recognised agreement or a copy thereof
- an approved Form 2.2.
You must keep all records for 5 years in accordance with section 118 of the Taxation Administration Act 2001.
Example
De facto partners own an investment property as joint tenants. A separation agreement is made under section 266 of the Property Law Act 1974 which contains a statement of all significant property. The agreement is signed by the de facto partners and witnessed by a solicitor. The agreement states that the couple has lived together in a valid and subsisting relationship for 18 months. An instrument is executed under the agreement to transfer property from the wife to the husband.
The instrument is not exempt under section 424 of the Duties Act 2001 as the parties to the separation agreement have not lived together in a valid and subsisting relationship for at least 2 years. The instrument must be sent to us for assessment. Evidence of value will be required.
For more information, please refer to the SA1—Self assessment of transfer duty—Instructions for registered self assessors (PDF 1,355 K).
