• Conditions for the marriage or relationship breakdown rollover

    For the rollover to apply, the capital gains tax (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.

    The 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).

    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.

    From 1 July 2009 the marriage or relationship breakdown rollover is extended to same-sex couples.

      Last modified: 21 Jun 2016QC 17205