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Chapter 8 – Marriage breakdown

Last updated 3 March 2016

Read this chapter if your legal or de facto marriage ended on or after 20 September 1985 and:

  • you transfer an asset or a share of an asset to your spouse
  • you receive an asset or a share of an asset from your spouse, or
  • a company or trustee of a trust transfers an asset to you or your spouse.

Unfamiliar terms

There may be terms in this chapter that are not familiar to you. Refer to chapter 1 in part A for more information or to Explanation of terms.

When we talk about 'your spouse', this includes your de facto spouse. 'Transfer' of an asset includes disposing of an asset to the transferee spouse or 'creating' an asset in their favour (such as a right to use property). Where we talk about 'an asset', this includes a share of an asset.

The term 'transferee spouse' refers to the spouse to whom an asset is transferred, while the 'transferor' is the person (or a company or the trustee of a trust) who transfers an asset to the transferee spouse.

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 a marriage breakdown, 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 dispose of the asset. If you are the transferee spouse, the cost base and other attributes of the asset are transferred to you.

You must keep all relevant records, as explained in chapter 3.