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 deeds or instruments 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, made under Part VIIIAB of the FLA, must
- pre-date the transaction
- specify how, in the event of a de facto relationship 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 90WA 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 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).
- Select Yes to the question: Is an exemption being claimed?
- Select s.90WA of Family Law Act from the Exemption type drop-down list.
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 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.
- See the data entry standards for OSR Online.
- Get help with OSR Online.
- Use the transfer duty rates or transfer duty calculator to work out a transfer duty liability.
- Read our endorsing examples if you are unsure how to stamp the documents for this exemption.
- View the approved transactions for self assessors.
- Last reviewed: 14 Oct 2020
- Last updated: 14 Oct 2020
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