Transactions Related to the Break–Up of a Marriage or De Facto

Transactions Related to the Break–Up of a Marriage or De Facto

3 Pages · 2012 · 56 KB · English

Transactions Related to the Break–Up of a Marriage or De Facto Relationship Sections 128 – 133 of the Duties Act 2008 . As at 1 July 2008 . Introduction

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Transactions Related to the Break–Up of a Marriage or De Facto Relationship Sections 128 – 133 of the Duties Act 2008 As at 1 July 2008 Introduction After the breakdown of a marriage or de facto rela tionship, dutiable transactions often occur to distribute property to the parties to the relati onship These transactions may be chargeable with nominal transfer duty if certain criteria are met If these criteria are not met, transfer duty will be charged at either the general rate or a concessional rate, as the case may be When nominal duty is chargeable Matrimonial instrument Nominal duty is chargeable on a dutiable transaction to the extent that it is effected by, or is in accordance with, a matrimonial instrument if:  the parties to the marriage are separated or di vorced or the marriage has irretrievably broken down; and  the property of either or both of the pa rties to the marriage (which may include superannuation) is being transferred to either or both of the parties to the marriage, a child of either of the parties or a trustee of such a child, or a trustee of a superannuation fund A ‘matrimonial instrument’ is a maintenance agreement registered or approved under section 86 or 87 of the Family Law Act 1975 (‘the FLA’), a financial agreement under section 90B, 90C or 90D of the FLA, a splitting agreement under Part VIIIB of the FLA, or an order of a court under the FLA It should be noted that the property of either or both of the parties does not include property owned by companies or unit trusts in which either or both of the parties own some or all of the shares or units For example, if a husband and wi fe own all the shares in a company that owns land, it is considered that the land is the pr operty of the company and not of the husband and wife De facto relationship instrument Nominal duty is chargeable on a dutiable transaction to the extent that it is effected by, or is in accordance with, a de facto relationship instrument if:  the de facto relationship between the de facto partners has ended; and  the property of either or both of the partners to the de facto relationship (which does not include superannuation) is being transferred to ei ther or both of the de facto partners to the relationship, or a child of either of t he partners or a trustee of such a child A ‘de facto relationship instrument’ is a financial agreement or a former financial agreement under section 205T of the Family Court Act 1997 (‘the FCA’), or a court order under Part 5A of the FCA or a Commonwealth, State or Territory law that substantially corresponds to Part 5A of the FCA It should be noted that a transfer of dutiable pro perty to a trustee of a superannuation fund made pursuant to a de facto relationship instrument will not be charged with nominal duty Further, the property of either or both of t he parties does not include property owned by companies or unit trusts in which either or both of the parties own some or all of the shares or units For example, if de facto partners own all th e shares in a company that owns land, it is considered that the land is the property of the company and not

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