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.