Stamp Duty Exemptions with Consent Orders in Adelaide

Stamp Duty exemptions with Consent Orders in Adelaide 

Stamp Duty exemptions with Consent Orders in Adelaide

In Adelaide, South Australia, separating couples can also benefit from an exemption from stamp duty (referred to as “stamp duty” or “transfer duty” in SA) when transferring property as part of their family law property settlement. This exemption can lead to significant savings during what is often a financially challenging time.

Legislation for Stamp Duty Exemption in South Australia:

The relevant legislation in South Australia that provides for this exemption is primarily the Stamp Duties Act 1923 (SA), which is designed to integrate with the Commonwealth’s Family Law Act 1975 (Cth).

Specifically, the key provision is:   Stamp Duties Act 1923 (SA):

• • Section 71CA – Exemption from duty in respect of Family Law instruments: This is the core section in South Australia. It explicitly states that certain instruments (including deeds or other instruments, like applications to transfer registration of a motor vehicle) are exempt from stamp duty if they are executed to give effect to or are consequential on:

• • • A Family Law agreement (which includes maintenance agreements, financial agreements, or splitting agreements under the Family Law Act).

• • • A Family Law order (an order of a court under Part VIII, VIIIA, VIIIAB or VIIIB of the Family Law Act 1975 of the Commonwealth).

• • Conditions for exemption (under Section 71CA(2)): To qualify, the agreement or order must relate to a marriage that has been dissolved or annulled OR a marriage or de facto relationship that the Commissioner of State Taxation is satisfied has broken down irretrievably.

• • Crucially, the instrument must also provide 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 a property.

• Family Law Act 1975 (Cth):

• • The South Australian legislation directly references the Family Law Act 1975 (Cth). Therefore, the property transfer must be formalised under the mechanisms provided by the Commonwealth Act, which include:

• • • Court orders: These are orders made by the Federal Circuit and Family Court of Australia (FCFCoA), including Consent Orders (under Part VIII for married couples or Part VIIIAB for de facto couples)

• • • Binding Financial Agreements (BFAs): These are private agreements made under Part VIIIA (for married couples) or Part VIIIAB (for de facto couples).

In essence, if a property transfer in South Australia is a direct consequence of a marriage or de facto relationship breakdown and is formalised by a Family Court Consent Order,  Stamp Duty exemptions with Consent Orders in Adelaide will be granted  Section 71CA of the Stamp Duties Act 1923 (SA).

The Process for Claiming the Exemption in South Australia:

When you are claiming the stamp duty exemption in South Australia is managed by RevenueSA (a division of the South Australian Department of Treasury and Finance). It’s typically handled by a legal professional (solicitor or conveyancer).

Here’s a general outline of the process:

1. Obtain a Sealed Court Order (Consent Order) or a Binding Financial Agreement (BFA):

1. • This is the fundamental requirement. The FCFCoA must have approved and sealed your Consent Orders, or you must have a valid Binding Financial Agreement. These documents must explicitly state the property being transferred and the parties involved and confirm that the transfer is part of the family law property settlement due to the relationship breakdown.

1. Prepare Transfer Documents:

1. • For real estate, a Form A1 – Transfer from Land Services SA (which manages land titles in SA) is prepared.

1. • For other dutiable property (e.g., motor vehicles), the appropriate transfer forms for that asset type will be used.

1. Complete an Application for Exemption/Refund Form (e.g., Form D1.2 – Declaration in respect of a Transfer of Land, or a specific family law exemption form if available):

1. • RevenueSA provides specific forms for claiming exemptions. For family law transfers, you’ll need to complete the relevant declaration that certifies the transfer is due to a relationship breakdown and is pursuant to a Family Law Act instrument.

1. • As of recent information, RevenueSA advises that Stamp Duty exemptions with Consent Orders in Adeliade for transfers between spouses/domestic partners where the property is the couple’s principal place of residence, a Statutory Declaration (Form 71CB) can be used if there is no formal court order or BFA and the property is the family home or a motor vehicle. However, for broader property settlements, relying on the formal Family Law Act instruments (Consent Orders or BFAs) is the most common and robust way to secure the exemption for all dutiable property types.

1. Lodge Documents with RevenueSA:

1. • Your lawyer or conveyancer will lodge the transfer documents, along with the sealed Consent Order (or certified BFA) and the completed exemption form/declaration, with RevenueSA.

1. • Lodgment can be done electronically or physically, depending on the transaction type and professional’s setup.

1. Assessment and Endorsement:

RevenueSA will assess the transaction. If satisfied that all of the conditions under Section 71CA (or 71CB for simple cases) of the Stamp Duties Act are met, they will endorse the transfer as being stamp duty exempt.

1. Record Keeping:

1. • It is crucial to keep thorough records, including:

1. • • The original sealed Consent Order or a certified copy of the Binding Financial Agreement.

1. • • The completed exemption application/declaration.

1. • • The endorsed (stamped) Transfer of Land document.

1. • • Any correspondence from RevenueSA.

Crucial Condition: The transfer of property Stamp Duty exemptions with Consent Orders in Adeliade must be made in accordance with the terms of the sealed Consent Order or Binding Financial Agreement, and it must be solely between the parties to the marriage or de facto relationship (or, in limited cases, a trustee of a superannuation fund as directed). The Commissioner must also be satisfied that the relationship has broken down irretrievably.

Frequently Asked Questions on Stamp Duty Exemptions with Consent Orders in Adelaide (FAQs):

Q1: Does this exemption apply to all property types in South Australia?

A: Yes, Section 71CA of the Stamp Duties Act 1923 (SA) broadly applies to “dutiable property” transferred as a result of a family law instrument. This includes real estate (residential, commercial, investment properties) and motor vehicles.

Q2: Do I need a lawyer or conveyancer to claim the exemption in South Australia?

A: While it’s technically possible to prepare some forms yourself, we highly recommended to engage a lawyer or conveyancer experienced in South Australian property law and family law settlements. They can: * Ensure the Consent Orders are properly drafted and approved by the FCFCoA, or the BFA is validly executed. * Navigate the specific requirements of RevenueSA and Land Services SA. * Accurately complete all necessary forms and declarations to qualify for the exemption. * Avoid potential delays, rejections, or errors that could lead to duty being incorrectly charged.

Q3: What if we have an informal agreement without Consent Orders or a BFA? Will we still get the exemption?

A: For transfers of the former principal place of residence (family home) or a motor vehicle, South Australia has a specific provision (potentially Section 71CB) that allows for an exemption via a statutory declaration even without formal Consent Orders or a BFA, provided the Commissioner is satisfied the relationship has broken down irretrievably.

However, for all other types of property (e.g., investment properties, shares, businesses) Stamp Duty exemptions with Consent Orders in Adelaide or for more complex settlements, formal Consent Orders or a Binding Financial Agreement are generally necessary to secure the stamp duty exemption under Section 71CA. It is always best practice to formalise any property settlement, regardless of the property type, to ensure finality and enforceability.

Q4: Does the exemption apply to Capital Gains Tax (CGT) in South Australia?

A: Stamp duty is a state tax, and CGT is a federal tax. The stamp duty exemption is separate from CGT. However, the Family Law Act also provides for “rollover relief” for CGT purposes for transfers between spouses or de facto partners as a result of a relationship breakdown, provided the transfer is under a court order or formal agreement. This generally means that CGT is deferred until the receiving party later sells the asset. You should always seek specific advice from a tax accountant or a lawyer specialising in tax law for CGT implications.

Q5: Are there any other costs involved in property transfers in South Australia, even with the exemption?

A: Yes, even with the stamp duty exemption, you will still incur other costs, which may include: * Legal fees for drafting the Consent Orders/BFA and handling the conveyancing process. * Court filing fees for the Consent Order application. * Land Services SA registration fees for changing ownership on the property title. * Mortgage discharge fees (if an existing mortgage is being removed). * New mortgage establishment fees (if the receiving party is taking out a new loan).

The Stamp Duty exemptions with Consent Orders in Adelaide and South Australia provides a crucial financial benefit for separating couples. By ensuring the property transfer is formally linked to a marriage or de facto relationship breakdown and executed under a Family Court Consent Order or a Binding Financial Agreement, parties can save a significant amount in transfer duty. Always seek professional legal and financial advice to manage this process correctly.