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    5. Section 90 Family Law Act exemption

    Section 90 Family Law Act exemption toolkit

    This toolkit has everything you need to assess transfer duty on matrimonial instruments that are exempt under s.90 of the Family Law Act.

    Topics on this page

      Section 90 of the Family Law Act 1975 (Cwlth) (FLA) exempts transactions that are executed in accordance with a court order made under Part VIII of the FLA.

      The following must apply for the transaction to be exempt:

      • The court order must pre-date the transaction.
      • The court order must provide a clear direction, and the property must be specified.
      • The transaction must be made in accordance with the court order.

      If this exemption applies to a transaction, you must assess it.

      Assessing a section 90 FLA exemption

      Use our interactive tool to determine if your transaction is exempt.

      Here are some tips to help you self assess this type of transaction in QRO Online.

      How to lodge online

      You must complete all mandatory fields under each tab in QRO 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 effected by a Form 1 transfer).
      • Select the applicable Type of dutiable property from the drop down list.
      • If more than 1 parcel of real 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 QRO 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).
      • Answer Yes to the question: Is an exemption being claimed?
      • Select s.90 and 90L of Family Law Act from the Exemption type drop-down list.

      Non-Australian entity

      When a transaction includes real property, each transferor and transferee must declare whether they are a non-Australian entity.
      Non-Australian entity

      A transferor or transferee is a non-Australian entity if they are:

      • an individual who is not an Australian citizen (non-Australian individuals include permanent residents)
      • a company incorporated outside Australia
      • a trust with a country of tax residence that is not Australia
      • another body (e.g. body politic, corporation sole) formed outside Australia.

      A non-Australian transferor or transferee must complete an identity details annexure.

      For transferors, an email is automatically generated through QRO 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 QRO Online.

      Records you need to keep

      For this type of transaction, you must keep:

      • the sealed court order or certified copy of it
      • a completed dutiable transaction statement (Form D2.2)
      • a copy of the endorsed transaction
      • 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 Family Law Act transactions

      A husband and wife own an investment property. Consent orders were made in the Federal Court of Australia under Part VIII of the FLA, in respect of a property settlement between the husband and the wife.

      Under the terms of the consent order, the court orders the wife to transfer her share of the property to the husband’s trustee company.

      Following the order of the court, the wife transfers her share in the property to the husband’s trustee company.

      The instrument transferring the wife’s interest in the property to the husband’s trustee company is exempt from duty under section 90(1)(a) of the FLA and must be self assessed.

      A property is owned by a wife and her business partner. Consent orders were made in the Federal Magistrates Court of Australia under Part VIII of the FLA, in respect of a property settlement between the husband and the wife.

      Under the terms of the consent order, the court orders the wife to pay the husband a lump sum of $100,000. In order to raise the money, the wife transfers her interest in the property to her business partner.

      The instrument transferring the wife’s interest in the property to her business partner is not exempt under section 90(1)(a) of the FLA, as the order does not require the transfer of the wife’s interest in the property. Therefore, the instrument cannot be said to be executed for the purposes of, or in accordance with, an order made under Part VIII of the FLA. This instrument must be self assessed for duty on the dutiable value of the entire property.

      Also consider…

      Last updated: 25 October 2024