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 under Part VIIIAB of the FLA.

Registered self assessors must assess this exemption, so we give you all the information you need to do this in OSRconnect.

The following must apply for the transaction to be exempt:

  • The agreement must
    • pre-date the transaction
    • contain a separation declaration clause
    • provide a clear direction, and the property must be specified
    • contain certificates of legal advice.
  • The parties to which this agreement relates 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:

You can also follow our procedure that shows you how to apply this exemption in OSRconnect.

See our endorsing examples if you are unsure how to stamp the documents for this exemption.

If more than one 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 OSRconnect.

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 electronic annexure is generated through OSRconnect. Select the email option when entering the transferor's email address. 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 OSRconnect.

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 entire 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.