Tax Guide for Separation and Divorce – Breakdown Rollover
Shortcuts to the Australian Taxation Office Family Breakdown advice
What is the marriage or relationship breakdown rollover?
Correct as of 28/06/2011 – Always check the ATO source webpage here for any updates or changes
As a general rule, capital gains tax (CGT) applies to all changes of ownership of assets on or after 20 September 1985. However, if you transfer an asset to your spouse as a result of the breakdown of your marriage or relationship, there is automatic rollover in certain cases. You cannot choose whether or not it applies.
This rollover ensures the transferor spouse disregards a capital gain or capital loss that would otherwise arise. In effect, the one who receives the asset (the transferee spouse) will make the capital gain or capital loss when they subsequently dispose of the asset. If you are the transferee spouse, the cost base of the asset is transferred to you.
Conditions for rollover
For the rollover to apply, the CGT event must have happened because of:
- an order of a court or a court order made by consent under the Family Law Act 1975, or a similar law of a foreign country, or
- a court order under a state, territory or foreign law relating to breakdown of relationship between spouses.
Rollover also applies to CGT events that happen after 12 December 2006 because of one of the following:
- a financial agreement that is binding under section 90G of the Family Law Act 1975 (known as a ‘binding financial agreement’) or a corresponding written agreement that is binding because of a corresponding foreign law
- an award made in an arbitration referred to in section 13H of the Family Law Act 1975 (known as an ‘arbitral award’) or a similar award under a corresponding state, territory or foreign law – such as an award made under the Western Australian Family Court Act 1997, or
- a written agreement that is binding because of a state, territory or foreign law relating to breakdown of relationship between spouses and that, because of such a law, a court is prevented from making an order about matters to which the agreement applies, or that is inconsistent with the terms of the agreement, in relation to those matters, unless the agreement is varied or set aside. (These are referred to below as ‘binding agreements used by separating couples’.) The following agreements relating to relationship breakdowns meet these requirements
- a domestic relationship agreement or termination agreement that complies with subsection 47(1) of the New South Wales Property (Relationships) Act 1984
- a recognised agreement within the meaning of the Queensland Property Law Act 1974
- a cohabitation agreement that is a certificated agreement within the meaning of the South Australian’s Domestic Partner Property Act 1996
- a personal relationship agreement or separation agreement that complies with subsection 62(1) of the Tasmanian Relationships Act 2003
- a financial agreement that complies with subsection 205ZS(1) of the Western Australian Family Court Act 1997
- a domestic relationship agreement or termination agreement that complies with subsection 33(1) of the Australian Capital Territory’s Domestic Relationships Act 1994
- a cohabitation agreement or separation agreement that complies with subsection 45(2) of the Northern Territory’s De Facto Relationships Act
- a relationship agreement that complies with subsections 59(1) and (2) of the Victorian Relationships Act 2008 (which came into effect on 1 December 2008).
Note that from 1 March 2009 the rollover also applies to CGT events that happen because of a financial agreement that is binding because of section 90UJ of the Family Law Act 1975 (known as a ‘binding financial agreement’) or a corresponding written agreement that is binding because of a corresponding foreign law. Section 90UJ relates to agreements made between parties to a de facto relationship.
In addition from the 2009-10 income year the marriage or relationship breakdown rollover is extended to same sex couples.
Note: Timing of the CGT event
Because certain changes to the marriage or relationship breakdown rollover rules apply to CGT events that happen after 12 December 2006, it is important to know when those events happen. The Summary of capital gains tax events contains information about the timing of CGT events.
If an asset is transferred under a contract, the CGT event happens when the contract is entered into.
- A binding financial agreement may be a contract.
The time at which a contract is entered into depends on the terms and conditions of the agreement and the relevant legislation being satisfied such that the agreement can take effect. In the case of a binding financial agreement, a separation declaration has to be made under section 90DA of the Family Law Act 1975 before the agreement can take effect.
- A binding agreement used by a marriage or relationship breakdown couple may be a contract. The time at which a contract is entered into depends on the terms and conditions of the agreement and the relevant legislation being satisfied such that the agreement can take effect
If there is no contract, the CGT event happens when the change of ownership of the asset occurs.
- Transfers made because of a court order or arbitral award are not made under a contract. Therefore, no CGT event happens until the asset is transferred under the order or award.
Note: If the asset is transferred under an agreement to which CGT event B1 applies, the event happens when use of the asset passes to the transferee spouse.
Binding financial agreements can be entered into before, during or after marriage or relationship. Arbitral awards allow property and financial matters of separating couples to be settled using arbitration. These arrangements allow separating couples to settle their affairs without having to go through court processes, which are often costly and protracted.
Additional rollover conditions for agreements that do not require court intervention
For transfers that happen because of a binding financial agreement or a binding agreement used by a separating couple, rollover only applies if at the time of the transfer:
- the spouses involved are separated
- there is no reasonable likelihood of cohabitation being resumed
- the transfer happened because of reasons directly connected with the breakdown of the marriage or relationship.
The transfer may not be directly connected with the breakdown if, for example:
- the spouses had an agreement before the breakdown of their marriage or relationship stating that the particular property was to be transferred between them for other reasons not directly related to the marriage or relationship breakdown, or
- the agreement provided for the transfer of non-specific property, the transfer does not occur for a considerable time (say, more than 12 months) after the agreement and factors are present that suggest the transfer was not directly connected to the marriage or relationship breakdown.
Last Modified: Monday, 20 June 2011
Please note that to view the full family tax information guide, go direct to the ATO website here
For direct help with your tax, phone the ATO Tax Helpline on 13 28 61.
Correct as of 28/06/2011 – Always check the ATO source webpage here for any updates or changes
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