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STAMP DUTIES (MISCELLANEOUS) AMENDMENT ACT 2004 (NO 41 OF 2004) - SECT 9

9—Insertion of section 71CBA

After section 71CB insert:

71CBA—Exemption from duty in respect of cohabitation agreements or property adjustment orders

        (1)         In this section—

"certificated cohabitation agreement" means a cohabitation agreement that is a certificated agreement within the meaning of the De Facto Relationships Act 1996 ;

"cohabitation agreement" means a cohabitation agreement under Part 2 of the De Facto Relationships Act 1996 ;

"property adjustment order" means an order of a court under Part 3 or 4 of the De Facto Relationships Act 1996 ;

"superannuation fund" means—

            (a)         a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or

            (b)         an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or

            (c)         a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; or

            (d)         an account within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth;

"trustee" of a superannuation fund means—

            (a)         if the fund has a trustee (within the ordinary meaning of that word)—the trustee of the fund; or

            (b)         if paragraph (a) does not apply and a person is identified in accordance with the regulations as the trustee of a fund for the purposes of this definition—the person identified in accordance with the regulations; or

            (c)         in any other case—the person who manages the fund,

and includes any other person who has power to make payments to the members of a superannuation scheme or plan that is constituted by, or incorporates, a superannuation fund.

        (2)         The following instruments are exempt from stamp duty:

            (a)         a certificated cohabitation agreement;

            (b)         a deed or other instrument (including an application to transfer registration of a motor vehicle) to give effect to, or consequential on—

                  (i)         a certificated cohabitation agreement; or

                  (ii)         a property adjustment order,

if—

                  (iii)         the Commissioner is satisfied—

                        (A)         that the de facto relationship to which the agreement or order relates has broken down irretrievably; and

                        (B)         that the de facto partners cohabited continuously as de facto husband and wife for at least 3 years; and

                  (iv)         the instrument—

                        (A)         provides for the disposition of property between the parties to the former de facto relationship and no other person, other than a trustee of a superannuation fund (if relevant), takes or is entitled to take an interest in property in pursuance of the instrument; or

                        (B)         in the case of an application to transfer registration of a motor vehicle—is consequential on a disposition of property between the parties to the former de facto relationship; and

                  (v)         at the time of the execution of the instrument the parties were, or had been, de facto partners;

            (c)         a deed or other instrument executed by the trustee of a superannuation fund to give effect to, or consequential on—

                  (i)         a certificated cohabitation agreement; or

                  (ii)         a property adjustment order.

        (3)         Where an instrument was not exempt from stamp duty under this section by reason only that the Commissioner was not satisfied that a de facto relationship had broken down irretrievably, a party to the relationship who paid stamp duty on the instrument is entitled to a refund of duty if the Commissioner is subsequently satisfied that the de facto relationship has broken down irretrievably.

        (4)         The Commissioner may require a party to an instrument in respect of which an exemption is claimed under this section to provide such evidence (verified, if the Commissioner so requires, by statutory declaration) as the Commissioner may require for the purpose of determining whether the instrument is exempt from duty under this section.

        (5)         This section applies—

            (a)         in relation to a certificated cohabitation agreement—both prospectively and retrospectively;

            (b)         in relation to any other kind of instrument—to instruments executed after the commencement of this section.



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