Conveyance of property between de facto partners

Status: Current
Legislation: Stamp Duties Act 1923
Date Issued: 21 July 2011

Information Circulars do not have the force of law.

The Statutes Amendment (De Facto Relationships) Act 2011 (the “Amending Act”) was today assented to by His Excellency the Governor.

The Amending Act is consequential upon the Commonwealth Powers (De Facto Relationships) Act 2009 (the “Referral Act”), which came into force in South Australia on 1 July 2010. The Referral Act referred South Australian legislative power to the Commonwealth, in relation to the making of laws concerning the division of property of de facto partners upon their separation, with effect from 1 July 2010.

Accordingly, Part VIIIAB of the Family Law Act 1975 of the Commonwealth (the “FLA”) applies in South Australia from 1 July 2010 upon the breakdown of a de facto relationship. Part VIIIAB of the FLA enables the Family Court to decide property, maintenance and superannuation rights of de facto couples upon separation, and establishes a regime for the making and recognition of ‘Part VIIIAB financial agreements’ by parties of the de facto relationship.

Currently, Section 71CA of the Stamp Duties Act 1923 (the “SDA”) exempts from stamp duty deeds or other instruments that give effect to or are consequential on a Family Law agreement or a Family Law order that provides for the disposition of property between the parties to a marriage or former marriage.

The Amending Act extends the exemption in Section 71CA of the SDA to apply to deeds or other instruments between the parties to former de facto relationships which are covered by Part VIIIAB of the FLA.

It should be noted however that the parties to a ‘companion couple relationship’ are still covered by the Domestic Partners Property Act 1996 and that Section 71CBA of the SDA applies to those persons.

Retrospective Application of the Amendments

As the Amending Act operates retrospectively from 1 July 2010, some de facto couples who have paid stamp duty on a relevant instrument since 1 July 2010 may be entitled to a refund.

The appropriate refund application form can be found on the RevenueSA website.

If persons affected by this change have an outstanding unpaid assessment of stamp duty, RevenueSA will need to be advised so that issue of a reassessment can be considered.

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