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Part VIII of the Family Law Act 1975 (Cwlth) (FLA) provides that certain instruments are exempt from duty in certain circumstances. Section 90 of the FLA exempts transactions that are executed in accordance with an order of a court made under this Part.
To determine if a transaction is exempt under s.90 of the FLA, please use the flow chart below.
For audit purposes, you must keep:
- a sealed court order or certified copy of the sealed court order
- a copy of the stamped transaction
- approved Form 2.2.
You must keep all records for 5 years in accordance with section 118 of the Taxation Administration Act 2001.
Example 1
A husband and wife own an investment property. Consent orders were made in the Federal Court of Australia under Part VIII of the FLA in respect of a property settlement between the husband and the wife.
Under the terms of the consent order, the Court orders the wife to transfer her share of the property to the husband’s trustee company.
The instrument transferring the wife’s interest in the property to the husband’s trustee company is exempt from duty under s.90(1)(a) of the FLA and must be self assessed.
Example 2
A property is owned by a wife and her business partner. Consent orders were made in the Federal Magistrates Court of Australia under Part VIII of the FLA in respect of a property settlement between the husband and the wife.
Under the terms of the consent order, the Court orders the wife to pay the husband a lump sum of $100,000. In order to raise the money, the wife transfers her interest in the property to her business partner.
The instrument transferring the wife’s interest in the property to her business partner is not exempt under s.90(1)(a) of the FLA as the order does not require the transfer of the wife’s interest in the property. Therefore, the instrument cannot be said to be executed for the purposes of, or in accordance with, an order made under Part VIII of the FLA. This instrument must be sent to us for assessment.
For more information, please refer to the SA1—Self assessment of transfer duty—Instructions for registered self assessors (PDF 1,355 K).