New South Wales Consolidated Acts

DUTIES ACT 1997 - SECT 68

68 Exemptions--break-up of marriages and other relationships

(1) Break-up of marriage No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of matrimonial property if--

(a) the property is transferred, or agreed to be sold or transferred, to--

(i) the parties to a marriage that is dissolved or annulled, or that, in the opinion of the Chief Commissioner, has broken down irretrievably, or

(ii) either of the parties to such a marriage, or

(iii) a child or children of either of the parties to such a marriage, or

(iv) a trustee of a child or children of either of the parties to such a marriage, or

(v) a trustee under the Bankruptcy Act 1966 of the Commonwealth of the estate of either of the parties to such a marriage, and

(b) the transfer or agreement is effected by or in accordance with--

(i) a financial agreement made under section 90B, 90C or 90D of the Family Law Act 1975 of the Commonwealth that, under that Act, is binding on the parties to the agreement, or

(ii) an order of a court under that Act, or

(iia) an agreement that the Chief Commissioner is satisfied has been made for the purpose of dividing matrimonial property as a consequence of the dissolution, annulment or breakdown of the marriage, or

(iii) a purchase at public auction of property that, immediately before the auction, was matrimonial property where the public auction is held to comply with any such agreement or order.

(1A) Break-up of de facto relationship No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of relationship property if--

(a) the property is transferred, or agreed to be sold or transferred, to--

(i) the parties to a de facto relationship that, in the opinion of the Chief Commissioner, has broken down irretrievably, or

(ii) either of the parties to such a de facto relationship, or

(iii) a child or children of either of the parties to such a de facto relationship, or

(iv) a trustee of a child or children of either of the parties to such a de facto relationship, or

(v) a trustee under the Bankruptcy Act 1966 of the Commonwealth of the estate of either of the parties to such a de facto relationship, and

(b) the transfer or agreement is effected by or in accordance with--

(i) a financial agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 of the Commonwealth that, under that Act, is binding on the parties to the agreement, or

(ii) an order of a court under that Act, or

(iia) an agreement that the Chief Commissioner is satisfied has been made for the purpose of dividing relationship property as a consequence of the breakdown of the relationship, or

(iii) a purchase at public auction of property that, immediately before the auction, was relationship property where the public auction is held to comply with any such agreement or order.

(2) Break-up of domestic relationship No duty is chargeable under this Chapter on a transfer, or an agreement for the sale or transfer, of relationship property if--

(a) the property is transferred, or agreed to be sold or transferred, to the parties to a domestic relationship that has, in the opinion of the Chief Commissioner, been terminated or to either of them, or to a child or children of either of them or a trustee of such a child or children, and

(b) the transfer or agreement is effected by or in accordance with--

(i) an order of a court made under the Property (Relationships) Act 1984 , or

(ii) a termination agreement within the meaning of section 44 of the Property (Relationships) Act 1984 that has been certified in accordance with section 47 of that Act, or

(iii) a purchase at public auction of property that, immediately before the auction, was relationship property where the public auction is held to comply with any such order or agreement.

(3) Associated transactions No duty is chargeable under this Chapter on a dutiable transaction to the extent that--

(a) for purposes of or ancillary to a transfer referred to in subsection (1), (1A) or (2), it transfers a share that is matrimonial property or relationship property to a person not a party to the relevant marriage or relationship, in order to comply with a requirement of or prescribed under the Corporations Act 2001 of the Commonwealth, or

(b) it is a declaration of trust, by the transferee of a share transferred as referred to in paragraph (a), for the benefit of a party to the marriage or relationship.

(3A) Superannuation interests No duty is chargeable under this Chapter on a dutiable transaction that is a transfer of, or an agreement to transfer, dutiable property from the trustee or custodian of the trustee of a complying superannuation fund to the trustee or custodian of the trustee of another complying superannuation fund if--

(a) the dutiable property is a superannuation interest (within the meaning of the Family Law Act 1975 of the Commonwealth) of a party to a marriage or de facto relationship that--

(i) has been dissolved or annulled or has, in the opinion of the Chief Commissioner, broken down irretrievably (in the case of a marriage), or

(ii) has, in the opinion of the Chief Commissioner, broken down (in the case of a de facto relationship), and

(b) the dutiable property is to be held solely for the purpose of providing a retirement benefit to the other party to the marriage or relationship, and

(c) the transfer or agreement is effected by or in accordance with a financial agreement that is binding on the parties to the agreement, or an order of a court, under the Family Law Act 1975 of the Commonwealth.

(4) Refunds--break-up of marriage If--

(a) ad valorem duty under this Chapter was paid on a transfer, or an agreement for the sale or transfer, of matrimonial property to--

(i) the parties to a marriage, or

(ii) either of the parties to a marriage, or

(iii) a child or children of either of the parties to a marriage, or

(iv) a trustee of a child or children of either of the parties to a marriage, or

(v) a trustee under the Bankruptcy Act 1966 of the Commonwealth of the estate of either of the parties to a marriage, and

(b) the transfer or agreement was effected as referred to in section 68 (1) (b), and

(c) the marriage has been dissolved or annulled or has broken down irretrievably,

the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4AA) Refunds--break-up of de facto relationship If--

(a) ad valorem duty under this Chapter was paid on a transfer, or an agreement for the sale or transfer, of relationship property to--

(i) the parties to a de facto relationship, or

(ii) either of the parties to a de facto relationship, or

(iii) a child or children of either of the parties to a de facto relationship, or

(iv) a trustee of a child or children of either of the parties to a de facto relationship, or

(v) a trustee under the Bankruptcy Act 1966 of the Commonwealth of the estate of either of the parties to a de facto relationship, and

(b) the transfer or agreement was effected as referred to in section 68 (1A) (b), and

(c) the de facto relationship has broken down,

the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4A) Refunds--break-up of domestic relationship If--

(a) ad valorem duty under this Chapter was paid on a transfer, or an agreement for the sale or transfer, of relationship property to the parties to a domestic relationship or to either of them, or to a child or children of either of them or to a trustee of such a child or children, and

(b) the transfer or agreement was effected as referred to in section 68 (2) (b), and

(c) the domestic relationship has been terminated,

the Chief Commissioner must reassess the transfer or agreement and refund the duty paid.

(4B) Evidence of exemption A party to a marriage, de facto relationship or domestic relationship may provide a declaration, in an approved form, to the Chief Commissioner to the effect that--

(a) in the case of a marriage--

(i) the party intends to apply for a dissolution or annulment of the marriage, or

(ii) the parties to the marriage have separated, and there is no reasonable likelihood of cohabitation being resumed, or

(b) in the case of a de facto relationship or domestic relationship, the relationship has broken down or been terminated.

The Chief Commissioner is required to have regard to any such declaration in exercising his or her functions under this section.

(4C) Power to require other evidence Subsection (4B) does not limit the functions of the Chief Commissioner under section 72 of the Taxation Administration Act 1996 .

(4D) Vested bankruptcy property This section applies in respect of vested bankruptcy property (within the meaning of the Family Law Act 1975 of the Commonwealth) of a party to a marriage or de facto relationship in the same way as it applies to matrimonial property or relationship property.

(4E) This section applies to a legal personal representative of a deceased person in the same way as it applied to the person.

(5) Definitions In this section--

"marriage" includes a void marriage.

"matrimonial property" means property in relation to the parties to a marriage or of either of them (within the meaning of the Family Law Act 1975 of the Commonwealth), including any property treated as property in relation to the parties or of either of them as a result of an order made under that Act.

"party" to a marriage includes a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere.

"relationship property" --

(a) in relation to a de facto relationship, means property in relation to the parties to the de facto relationship or of either of them (within the meaning of the Family Law Act 1975 of the Commonwealth), including any property treated as property in relation to the parties or of either of them as a result of an order made under that Act, or

(b) in relation to a domestic relationship, means property of the parties to the relationship or of either of them.