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An agreement made to divide your property because of your separation.
A registered arbitration award under the FLA 1975.
Note
The exemption can also apply to a purchase of matrimonial property by public auction by either party to the marriage or relationship (or child of either of them) if held to comply with the previously mentioned court orders or agreements.
Marriage separation
Marriage is the legally recognised union of two people, entered voluntarily.
You are eligible for this exemption if:
your marriage has been dissolved (you have a divorce order)
your marriage has been annulled, or
your marriage has broken down irretrievably (even if you are not yet divorced).
De facto and domestic relationship separation
A de facto relationship exists when two adults live together as a couple but are not married to each other.
A domestic relationship is one where two adults who are not married live together to provide care and domestic support to each other without payment or reward.
You are eligible for this exemption if:
you have been in a genuine de facto or domestic relationship
the relationship has broken down irretrievably, and
the parties have separated with no reasonable likelihood of cohabitation resuming.
The exemption applies no matter how long the relationship lasted.
Definitions of matrimonial and relationship property
Matrimonial property is property owned by a person in a marriage. This can include property owned by a company or trust that is controlled by a party to the marriage or relationship, or both of them.
This is a broad definition and includes:
the family home (whether in joint names or sole name)
investment properties
vacant land
business premises, or
any other real estate owned by either or both parties.
It does not matter whose name the property is in. If either party owns it, it can be matrimonial property for the purposes of this exemption.
Relationship property applies to de facto relationships and domestic relationships.
Like matrimonial property, it means property owned by a person in the relationship. This can include property owned by a company or trust that is controlled by a party to the relationship, or both of them.
Eligible property transfers
The exemption can apply to various types of real property transfers, including:
family home transfers where a jointly owned home is transferred into one person's sole name
investment property transfers for any investment properties being divided as part of the settlement
sole to sole transfers where property owned solely by one party is transferred to the sole name of the other party, and
properties sold at auction under a financial agreement or court order, and one of the parties (or a child or trustee) acquires it.
The exemption can also apply to transfers of motor vehicle registrations and superannuation interests.
For superannuation interests:
the transfer must be from the trustee or custodian of the trustee of a complying superannuation fund to the trustee or custodian of the trustee of another complying superannuation fund, and
the property is a superannuation interest (within the meaning of the FLA 1975) of a party to a marriage or other relationship.
Division of property
The exemption applies regardless of how the property is divided. This means the property can be transferred:
100% to one party
in any unequal proportions (e.g. 70/30, 60/40), or
Evidence of your marriage or relationship break-up, such as:
a separation certificate
a divorce certificate or application
a statutory declaration confirming the parties have separated with no reasonable likelihood of resuming cohabitation, or
other evidence showing the parties live separately.
Evidence of your property settlement (include one of the following):
For marriages:
a binding financial agreement made under sections 90B, 90C or 90D of the FLA 1975
court orders from the Family Court, or
an agreement made for the purpose of dividing matrimonial property as a consequence of the break-up of the marriage.
For de facto relationships:
a binding financial agreement made under sections 90UB, 90UC or 90UD of the FLA 1975, or
court orders from the Family Court, or
an agreement made for the purpose of dividing relationship property as a consequence of the break-up of the relationship (for transactions entered on or after 19 May 2022 only).
If applicable, evidence of the trustee relationship, such as:
trust deeds, including any variations to those deeds, and
bankruptcy order.
View the additional evidentiary requirements that must be provided if the transferor and transferee are trustees or custodians of complying superannuation funds.
Revenue NSW can request additional evidence at any time to check the information you provide.
Keep all original documents and make copies for your records before submitting your application.
How to apply
Transfer duty exemptions and concessions are not automatic.
A solicitor or conveyancer (legal representative) should manage the assessment or application on your behalf as part of the property transfer process.
Your legal representative should:
advise you if you are entitled to the exemption or if there are any issues
prepare all necessary transfer documents
ensure your property settlement agreement is properly documented (if you do not already have court orders or a binding financial agreement)
complete and submit the exemption assessment or application with Revenue NSW on your behalf
ensure all requirements are met and forms are correctly completed, and
In most cases, your legal representative can process your duty assessment straight away if you qualify for the exemption.
If your transaction requires assessment by Revenue NSW, your legal representative can advise on when you can expect a decision about your application.
Duties Notice of Assessment
A Duties Notice of Assessment (Notice of Assessment) is a document from Revenue NSW that informs a purchaser or transferee of the amount of duty they must pay.
When your transfer has been assessed, your legal representative will receive a Notice of Assessment showing:
a nil balance if you were eligible for the full exemption, or
the amount you need to pay if you were eligible for a concession.
Read more about paying duties, including what happens if you do not pay by the due date.
Objections and reviews
If we deny your application for an exemption, you can lodge an objection with us within 60 days of the decision.
If your objection is unsuccessful, or we do not respond within 90 days, you have the right to seek a review by the NSW Civil and Administrative Tribunal (NCAT).
You will also need to lodge all the other documents required for this exemption with Revenue NSW.
Examples
Example 1: Transfer of family home after divorce
Sarah and Michael are divorcing. They own their family home as joint tenants (50/50).
Under their court orders, Sarah will keep the family home and pay Michael his share of the equity.
They are eligible for the full exemption because:
they are married but are now divorcing, and
the transfer
is of matrimonial property, and
follows court orders.
Sarah does not need to pay transfer duty, on the 50% share she purchases from Michael.
Example 2: De facto couple with investment property
James and Ingrid were in a de facto relationship for 8 months.
They separated and have a binding financial agreement that states their jointly owned investment property will be transferred into James's sole name.
Despite the short relationship, they qualify for the exemption because:
the property qualifies as relationship property
they were in a de facto relationship that has ended, and
they have a binding financial agreement.
James and Ingrid do not need to pay transfer duty on this transaction.
Example 3: Multiple properties
David and Maria are divorcing. They own three properties: a family home and two investment properties.
Under their court orders, David gets the family home and one investment property, while Maria gets the other investment property.
All properties need to be transferred to reflect sole ownership.
They are eligible for this exemption on all three transfers because:
the properties qualify as matrimonial property
they are married but are now divorcing, and
there is a court order.
David and Maria do not need to pay transfer duty on any of the transfers.
Example 4: Property transferred to child
Tom and Robert are separating from their de facto relationship.
They have a binding financial agreement that states their jointly owned property will be transferred to a trustee for their 16-year-old son.
They are eligible for this exemption because:
the transfer involves a relationship property
they were in a de facto relationship that has ended
they have a property settlement, and
the property is being transferred to a trustee for a child of the relationship.
Tom and Robert do not have to pay transfer duty on this transaction.
Example 5: Settlement agreement without court orders
Rachel and Hoàng are divorcing. They do not have court orders but have reached an agreement about their property division.
They have documented this in an agreement they prepared themselves, not a binding financial agreement under the Family Law Act 1975, just a regular agreement.
Under this agreement, their jointly owned home will be transferred to Rachel.
They can still qualify for the exemption if Revenue NSW is satisfied the agreement was made for the purpose of dividing matrimonial property as a consequence of their marriage break-up.
Example 6: When the exemption does not apply
Mark and Anjali are divorcing.
As part of their settlement, Mark is selling his share of their jointly owned home to Anjali's brother, Nirav, at market value.
The exemption does not apply because the property is being transferred to a third party, not to either of the parties to the marriage or their children.
Nirav would need to pay full transfer duty on his purchase.
Call the duties team on 1300 139 814 or +61 2 7808 6916 if you are overseas. Staff are available Monday to Friday, 8.30am to 5.00pm AEST (excluding public holidays).
