Section 90WA 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 90WA of the Family Law Act 1975 (Cwlth) (FLA). If this exemption applies to a transaction, as a registered self assessor you must assess it.
Section 90WA 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.
The following must apply for the transaction to be exempt:
- The agreement or court order must pre-date the transaction.
- The agreement or court order must provide a clear direction and the property must be specified.
- The transaction must be made in accordance with the agreement or court order.
Assessing a section 90WA FLA exemption
Use these tools to determine if an exemption applies to a transaction:
Read 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.
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 agreement or sealed court order, or a certified copy of them
- 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
De facto partners own an investment property. Orders are made in the Federal Court of Australia under Part VIIIAB of the FLA, in respect of a property settlement between the couple. Under the terms of the order, one partner is to transfer his interest in the property to the other partner's brother.
Following the order of the court, one partner transfers his interest in the property to the other partner's brother.
The instrument transferring the partner's interest is exempt under section 90WA of the FLA and must be self assessed.
Dutiable transaction example
De facto partners own a property as joint tenants. A financial agreement is made under Part VIIIAB of the FLA, which provides for the transfer of one partner's interest in the property to the other. The agreement is expressed to be made under section 90UC of the FLA and states that the couple have lived together in a valid and subsisting relationship for 7 years. The agreement also contains signed statements of legal advice, a separation declaration and clearly identifies the subject property.
An instrument is executed to transfer the property from one partner to the other partner's new husband. The instrument is not exempt under section 90WA of the FLA and must be self assessed for duty on the dutiable value of the entire property.
- Last reviewed: 20 Mar 2019
- Last updated: 29 Sep 2017
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