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Sections: s43

Lodgement category: Spouse or Domestic Partner Transfer

Sub category: Breakdown of Relationship transfer between spouses/domestic partners

Circumstances/Transactions:

A transfer of residential property between people who are married to, or who are domestic partners of, each other, where:

  • No other person takes or is entitled to take an interest in the property under the transfer, and

  • The transfer is for no consideration.

There can be a maximum of two transferors and/or two transferees and all must be natural person(s).

At least one spouse/partner must live in the property as their principal place of residence continuously for at least a year, with their residency starting within 12 months of settlement. 

It is not consideration for these purposes if a spouse/partner transferee gives a mortgage to:

  • secure the same or a greater amount as the amount outstanding immediately before the transfer, or
  • assumes the liabilities under the mortgage. 

The mortgage or assuming existing liabilities must not be part of a sale or other arrangement designed to take advantage of this exemption. The Commissioner is satisfied that this is the case if the mortgage:

  • was created at or before the time of the transfer, or
  • was part of a genuine refinancing of a mortgage created at or before the time of the transfer, or
  • was created to secure borrowings applied to the improvement of the property.

Residence requirement

If the residence requirement is not met, duty. 

If you think you will not satisfy the residence requirement you must contact us. We can vary the requirement, but we will only do so if you have good reason. 

To avoid a tax default, you must pay the duty that would otherwise apply to the transfer within 30 days of the date you do not comply with the residence requirement. Until you have paid the duty that applies, you are unable to claim this exemption on any other property.

Evidence:

From 1 July 2017, you must complete the digital duties form.