• Conditions for marriage breakdown rollover

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    This information may not apply to the current year. Check the content carefully to ensure it is applicable to your circumstances.

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    For the rollover conditions to be met, the CGT event must have happened because of:

    • an order of a court or court order made by consent under the Family Law Act 1975 or a similar law of a foreign country
    • a maintenance agreement approved by a court under section 87 of that Act or a similar agreement under a foreign law, or
    • a court order under a state, territory or foreign law relating to de facto marriage breakdowns.

    Rollover is not available to couples in same-sex relationships.

    Note that from 27 December 2000 maintenance agreements are no longer approved under section 87 of the Family Law Act 1975. Therefore, rollover does not apply to maintenance agreements entered into after this date unless a court order (including a consent order) has been obtained. CGT events happening because of maintenance agreements registered under section 86 of the Family Law Act 1975 have never qualified for rollover.

    On 10 May 2005, as part of the 2005 Budget, the Government announced proposed changes that will extend the scope of the marriage breakdown CGT rollover to assets transferred to a spouse or former spouse under a binding financial agreement or arbitral award under the Family Law Act 1975 or a similar agreement or award under a corresponding foreign law. The rollover will also apply to assets transferred under a written agreement under a state, territory or foreign law relating to de facto marriage breakdowns where the agreement is similar to a binding financial agreement. (Amendments will also be made to ensure that the main residence exemption interacts more appropriately with the marriage breakdown rollover relief and ensure that marriage breakdown cash settlements do not give rise to CGT liabilities.) The Government's intention is that the changes will apply to CGT events that happen after the date of Royal Assent of the amending legislation.

    If you transfer assets under a private or informal arrangement that does not meet any of these conditions, rollover is not available. (See If there is no court approval.)

    Relevant CGT events

    For rollover to apply, one of the following events must happen. The transferor:

    • disposes of an asset to the transferee spouse (CGT event A1)
    • enters into an agreement with the transferee spouse under which:
      • the right to use and enjoy a CGT asset passes to the transferee spouse
      • title in the asset will or may pass to the transferee spouse at the end of the agreement (CGT event B1). There is no rollover if title in the CGT asset does not pass to the transferee spouse when the agreement ends
       
    • creates a contractual or other right in favour of the transferee spouse (CGT event D1)
    • grants an option to the transferee spouse or renews or extends an option granted to them (CGT event D2)
    • owns a prospecting or mining entitlement, or an interest in one, and grants the transferee spouse a right to receive income from operations carried on by the entitlement (CGT event D3), or
    • is a lessor and grants, renews or extends a lease to the transferee spouse (CGT event F1).

    There is no rollover for the transfer of trading stock.

    Last modified: 06 Oct 2009QC 18504