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Section 90L Family Law Act exemption toolkit

This toolkit brings together everything you need to know about self assessing duty on transfers that are exempt under section 90L of the Family Law Act 1975 (Cwlth) (FLA).

Section 90L of the FLA exempts financial agreements, termination agreements and transactions that are executed in accordance with a court order or financial agreement made under Part VIIIAB of the FLA.

Transactions to which this exemption applies must be self assessed in OSR Online.

The following must apply for the transaction to be exempt:

  • The agreement, made under Part VIIIA of the FLA, must
    • pre-date the transaction
    • specify how, in the event of a marriage breakdown, all or any of the property or financial resources of either or both parties is to be dealt with
    • contain a signed separation declaration (this can be within or separate to the agreement)
    • contain signed confirmation that both parties obtained independent legal advice.
  • The parties to the agreement must be separated.
  • The transaction must be made in accordance with the agreement.

Assessing a section 90L FLA exemption

Use these tools to determine if an exemption applies to a transaction:

Here are some tips to help you self assess this type of transaction in OSR Online.

How to lodge online

You must complete all mandatory fields under each tab in OSR Online. Mandatory fields are marked with a red asterisk. There are some specific data entry requirements.

  • Select the applicable Transaction class from the drop-down list.
  • Select the applicable Type of dutiable transaction (e.g. Transfer of dutiable property for transactions evidenced by a Form 1 transfer).
  • Select the Type of dutiable property.
  • If more than one parcel of real property is being transferred under the court order (resulting in multiple transfers), each transfer must be assessed individually and receive its own unique transaction number in OSR Online.
  • Answer Yes to the question: Is the consideration for this transaction less than the unencumbered value of the property included in this transaction?
  • Enter the unencumbered value of 100% interest in property if known; if unknown, enter $0.00 (nil)
  • Answer Yes to the question: Is an exemption being claimed?
  • Select s.90 and 90L of Family Law Act from the Exemption type drop-down list.

Non-Australian entity

When a transaction includes real property, each transferor and transferee must declare whether they are a non-Australian entity.

A non-Australian transferor or transferee must complete an identity details annexure.

For transferors, an email is automatically generated through OSR Online when the transaction is lodged, asking the transferor to complete an online identity details annexure. Contact us for help if you cannot obtain the transferor's email address.

Transferees must complete an identity details annexure and you must enter these details in OSR Online.

Records you need to keep

For this type of transaction, you must keep:

  • the original financial or other agreement (or a certified copy)
  • a completed dutiable transaction statement (Form D2.2)
  • an identity details annexure for each non-Australian transferee, if the transaction involves real property.

Find out more about your record keeping obligations.

Examples of transactions made in relation to the FLA

Exempt transaction example

A husband and wife own an investment property. A financial agreement made in accordance with section 90C of the FLA is executed in respect of a property settlement between the husband and wife.

Under the terms of the agreement, the husband is to transfer his interest in the property to the wife. The agreement is expressed to be made under section 90C of the FLA and the property is clearly identified in the agreement. The agreement further shows that the parties have separated, and contains a separation declaration and signed statements of legal advice.

Following execution of the financial agreement, the husband transfers his interest.

The instrument transferring the husband's interest in the property to the wife is exempt from duty under section 90L of the FLA and must be self assessed.

Dutiable transaction example

A husband and wife own an investment property. A financial agreement made in accordance with section 90C of the FLA is executed in respect of a property settlement between the husband and wife.

Under the terms of the agreement, the husband is to transfer his interest in the property to the wife. The agreement is expressed to be made under section 90C of the FLA and the property is clearly identified in the agreement. The agreement also states that the parties have separated, and contains a separation declaration and signed statements of legal advice.

For tax reasons, the wife has the property transferred to her investment company instead. The wife is the sole director and only shareholder of her investment company.

The instrument transferring the husband's interest in the property to the wife's investment company is not exempt under section 90L of the FLA.

Even though the wife is the sole director and only shareholder of the company, the transfer is being made to the company and not to the wife. The instrument transferring the husband's interest in the property cannot be said to be executed for the purposes of, or in accordance with, the financial agreement. This instrument must be self assessed for duty on the dutiable value of the property.

Also consider...

Contact

Office of State Revenue
For transfer duty self assessment queries:

For queries on payroll tax, land tax and royalties:

  • call 1300 300 734 (Australia) or +61 7 3179 2500 (overseas)
  • send an email using our online enquiry form.