A dutiable transaction is exempt from duty to the extent that it is effected by a court order mentioned in section 129(d) or 130(b) of the Duties Act. Transfers of land made in accordance with these court orders will be chargeable with nominal duty if certain criteria are met. You cannot self-assess the transaction if:
- the court order includes the transfer of dutiable property other than land or chattels or
- the transactions are made in accordance with maintenance agreements, financial agreements and splitting agreements or
- the transaction involves a reassessment (such as where a transaction has been assessed for full transfer duty at the general rate and a reassessment is being requested at the nominal rate of duty).
If the court order relates to multiple properties that are required to be transferred to different persons, a separate assessment must be made for each person being transferred property. For example, if the court order provides that property 1 is to be transferred to Party A, and property 2 and 3 is to be transferred to Party B, then the agent representing Party A and the agent representing Party B must assess the court order under different Bundle IDs to reflect that there are two transfers occurring.
Retain the following records when self-assessing a transaction:
- the Family Court Order
- a Foreign transfer duty declaration for each transferee
- the transfer of land
- if the property is to be transferred to a child of either party - an extract of the child's birth certificate and
if it's being transferred to a trustee of the child - the trustee relationship document - if the property is to be transferred to a trustee of a superannuation fund – a copy of the superannuation trust deed and
- the self-assessment checklist accessible below.
Use this checklist to see if the transaction can be self-assessed.
- The answers provided by your client must be used when entering the transaction details into Online Duties.
- Please retain a copy of the checklist for auditing purposes.
Examples
Show moreExample 1
Colin and Polly were married to each other and are jointly registered on the title to their family home. After their marriage breaks down, a family court order was issued that states Colin is to transfer his interest in the family home to Polly. The court order is exempt from duty, and the transfer of land is chargeable with nominal duty. The court order and transfer of land can be self-assessed.
Example 2
Kelly and Jacinta are de facto partners who are registered on the title to two properties. Their de facto relationship ends and a court order was issued to transfer one property to Kelly and the other to Jacinta. Two transfers of land were prepared reflecting this. The court order and transfers of land can be self-assessed. A separate assessment is required under different Bundle IDs to reflect that there are two transfers occurring.
Example 3
Jane and Mike were de facto partners who, as joint tenants, owned their family home and an investment property. After they separated, Jane and Mike apply for consent orders to effect the split of their property following separation. Under the court order, Jane is to transfer her interest in the investment property to Mike and Mike is to transfer his interest in the family home to Jane and Jane’s parents.
The transfer of Jane’s interest in the investment property to Mike is charged with nominal duty and can be self-assessed. The transfer of Mike’s interest in the family home to Jane and Jane’s parents cannot be self-assessed. The transfer of Mike's interest to Jane is chargeable with nominal duty, and the transfer of Mike's interest to Jane's parents is chargeable with duty at the general rate.
Example 4
During their marriage, Jim and Erin enter into a financial agreement that provides for the transfer of their family home to Jim if their marriage ends. When they divorce a few years later, they transfer the family home to Jim in accordance with the agreement. The financial agreement giving rise to the transfer is exempt from duty. The transfer of land is chargeable with nominal duty. The financial agreement and transfer of land cannot be self-assessed because the transfer is in accordance with a financial agreement rather than a court order.
Example 5
Under an order of the Family Court, Mr Brown and his ex-wife, Ms White, are required to transfer a property to their child. The property is owned by Company XYZ Pty Ltd of which Mr Brown and Ms White are the only shareholders. As the transfer has been effected by a court order, the Commissioner will accept that the court has considered the facts and evidence to find the company to be the alter ego of the parties and therefore the property to be matrimonial property. As such, nominal duty will apply to the transfer of the property and can be self-assessed.
How to self-assess the transaction
Show moreStep 1 - Self-assess the Family Court Order
After confirming the transaction is eligible for self-assessment, lodge it using the Vesting of Dutiable Property (order/law) transaction type. Provide the following information:
- land details (multiple properties can be included if transferred between the same parties)
- person vested from (individual or company)
- person vested to (individual or company, include foreign person)
Eligible Family Court Orders are assessed as exempt under Matrimonial or De Facto Relp.
Step 2 - Generate and print the Certificate of Duty for the Family Court Order
Step 3 - Create a separate Transfer of Land transaction linked to the Family Court Order using the Bundle ID
Lodge the Transfer of Land as a new transaction. If it is in conformity with the eligible Family Court Order, the transaction can be self-assessed for a nominal duty using the Dutiable Transaction > Transfer of Dutiable Property > Family Court Orders transaction type. Provide the following:
- the Bundle ID for the self-assessed Family Court Order transaction (with the Certificate of Duty already issued)
- details of the Family Court Order transaction
- land details (if multiple properties are included)
- confirmation of the Transferor(s) and Transferee(s)
Step 4 - Generate and print the Certificate of Duty for the Transfer of Land
Step 5 - Settle the transactions
As these transactions cannot be settled via eConveyancing, both transactions will need to be settled using paper transfers registered with Landgate.
After lodging the Transfer of Land, the associated Family Court Order cannot be cancelled. To cancel, the transaction must be transferred to RevenueWA.
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