STAMP DUTIES ACT 1923 - SECT 71CA
STAMP DUTIES ACT 1923 - SECT 71CA
71CA—Exemption from duty in respect of Family Law instruments
(1) In this
section—
"de facto relationship" has the same meaning as in the
Family Law Act 1975 of the Commonwealth;
"Family Law agreement" means—
(a) a
maintenance agreement; or
(b) a
financial agreement; or
(c) a
splitting agreement;
"Family Law order" means an order of a court under Part VIII, VIIIA, VIIIAB or
VIIIB of the Family Law Act 1975 of the Commonwealth;
"flag lifting agreement" has the same meaning as in Part VIIIB of the
Family Law Act 1975 of the Commonwealth;
"financial agreement" means a financial agreement made under Part VIIIA
or VIIIAB of the Family Law Act 1975 of the Commonwealth (or taken
to have been made under Part VIIIAB of that Act) that, under that Act, is
binding on the parties to the agreement;
"maintenance agreement" means—
(a) a
maintenance agreement approved by a court by order under section 87 of the
Family Law Act 1975 of the Commonwealth; or
(b) a
maintenance agreement registered in a court under section 86 of the
Family Law Act 1975 of the Commonwealth or under regulations made pursuant to
section 89 of that Act;
"marriage" includes a marriage that is void and thus liable to
annulment, and "married" has a corresponding meaning;
"splitting agreement" means—
(a) a
flag lifting agreement; or
(b) a
superannuation agreement,
that has effect under Part VIIIB of the Family Law Act 1975 of the
Commonwealth;
"superannuation agreement" has the same meaning as in Part VIIIB of the
Family Law Act 1975 of the Commonwealth;
"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
Family Law 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 Family Law agreement; or
(ii)
a Family Law order,
if—
(iii)
the agreement or order relates to—
(A) a marriage that has been dissolved or
annulled; or
(B) a marriage or de facto relationship
that the Commissioner is satisfied has broken down irretrievably; and
(iv)
the instrument—
(A) provides for the disposition of
property between the parties to the marriage (or former marriage) or 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 marriage (or former
marriage) or former de facto relationship; and
(v)
at the time of the execution of the instrument the
parties were, or had been, married to, or in a de facto relationship with,
each other;
(c) a
deed or other instrument executed by a trustee of a superannuation fund to
give effect to, or consequential on—
(i)
a Family Law agreement; or
(ii)
a Family Law order; or
(iii)
the provisions of any Act or law (including an Act or
subordinate legislation of the Commonwealth) relating to the transfer or
disposition of property or any entitlements on account of a
Family Law agreement or Family Law order.
(3) If an instrument
was not exempt from stamp duty under this section by reason only that—
(a) in
the case of an instrument relating to a marriage—
(i)
the marriage of the 2 persons had not been dissolved
or annulled; and
(ii)
the Commissioner was not satisfied that the marriage of
the 2 persons had broken down irretrievably; or
(b) in
the case of an instrument relating to a de facto relationship—the
Commissioner was not satisfied that the relationship of the 2 persons had
broken down irretrievably,
a party to the marriage or de facto relationship who paid stamp duty on the
instrument is entitled to a refund of the duty—
(c) if
the marriage is subsequently dissolved or annulled; or
(d) if
the Commissioner is subsequently satisfied that the marriage or 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, as
re-enacted by the Stamp Duties (Miscellaneous) Amendment Act 2004 ,
applies—
(a) in
relation to Family Law agreements—both prospectively and
retrospectively;
(b) in
relation to any other kind of instrument—to instruments executed after
the commencement of that Act.