For the rollover to apply, 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, or
- a court order under a state, territory or foreign law relating to breakdown of relationship between spouses.
The rollover also applies to CGT events that happen after 12 December 2006 because of one of the following:
- a financial agreement that is binding under section 90G of the Family Law Act 1975 (known as a ‘binding financial agreement’) or a corresponding written agreement that is binding because of a corresponding foreign law
- an award made in an arbitration referred to in section 13H of the Family Law Act 1975 (known as an ‘arbitral award’) or a similar award under a corresponding state, territory or foreign law
- a written agreement that is binding because of a state, territory or foreign law relating to breakdowns of relationship between spouses and because of such law, a court is prevented from making an order
- about matters to which the agreement applies, or
- that is inconsistent with the terms of the agreement for those matters, unless the agreement is varied or set aside.
These are referred to below as ‘binding agreements’ used by separating couples. The following agreements relating to relationship breakdowns meet these requirements:
- a domestic relationship agreement or termination agreement that complies with subsection 47(1) of the New South Wales Property (Relationships) Act 1984
- a recognised agreement within the meaning of the Queensland Property Law Act 1974
- a cohabitation agreement that is a certificated agreement within the meaning of the South Australian's Domestic Partner Property Act 1996
- a personal relationship agreement or separation agreement that complies with subsection 62(1) of the Tasmanian Relationships Act 2003
- a financial agreement that complies with subsection 205ZS(1) of the Western Australian Family Court Act 1997
- a domestic relationship agreement or termination agreement that complies with subsection 33(1) of the Australian Capital Territory’s Domestic Relationships Act 1994
- a cohabitation agreement or separation agreement that complies with subsection 45(2) of the Northern Territory’s De Facto Relationships Act
- a relationship agreement that complies with subsections 59(1) and (2) of the Victorian Relationships Act 2008 (which came into effect on 1 December 2008).
From 1 March 2009 the rollover also applies to CGT events that happen because of a financial agreement that is binding because of section 90UJ of the Family Law Act 1975 (known as a ‘binding financial agreement’) or a corresponding written agreement that is binding because of a corresponding foreign law. Section 90UJ relates to agreements made between parties to a de facto relationship.
In addition, from 2009–10 the marriage breakdown rollover was extended to same-sex couples.
Timing of the CGT event
Because certain changes to the marriage or relationship breakdown rollover rules apply to CGT events that happened after 12 December 2006 it is important to know when those events happened. Appendix 1 contains information about the timing of CGT events.
If an asset was transferred under a contract, the CGT event happened when the contract was entered into.
A binding financial agreement may be a contract. The time at which a contract is entered into depends on the terms and conditions of the agreement and the relevant legislation being satisfied such that the agreement can take effect. In the case of a binding financial agreement, a separation declaration has to be made under section 90DA of the Family Law Act 1975 before the agreement can take effect.
A binding agreement used by a marriage or relationship breakdown couple may be a contract. The time at which a contract was entered into depends on the terms and conditions of the agreement and the relevant legislation being satisfied such that the agreement could take effect.
If there is no contract, the CGT event happened when the change of ownership of the asset occurred.
Transfers made because of a court order or arbitral award are not made under a contract. Therefore, no CGT event happened until the asset was transferred under the order or award.
If the asset was transferred under an agreement to which CGT event B1 (see Appendix 1) applied, the event happened when use of the asset passed to the transferee spouse.
Binding financial agreements can be entered into before, during or after marriage or relationship. Arbitral awards allow property and financial matters of separating couples to be settled using arbitration. These arrangements allow separating couples to settle their affairs without having to go through court processes, which are often costly and protracted.
Additional rollover conditions for agreements that do not require court intervention
For transfers that happen because of a binding financial agreement, or a binding agreement used by a separating couple, the rollover only applies if at the time of the transfer:
- the spouses involved were separated
- there is no reasonable likelihood of cohabitation being resumed, and
- the transfer happened because of reasons directly connected with the breakdown of the marriage or relationship.
The transfer may not be directly connected with the breakdown if, for example:
- the spouses had an agreement before the breakdown of their marriage or relationship stating that the particular property was to be transferred between them for other reasons not directly related to the marriage or relationship breakdown, or
- the agreement provided for the transfer of non-specific property, the transfer does not occur for a considerable time (say, more than 12 months) after the agreement, and factors are present that suggest the transfer was not directly connected to the marriage or relationship breakdown.
Relevant CGT events
For the rollover to apply, one of the following events must have happened. The transferor:
- disposed of an asset to the transferee spouse (CGT event A1)
- entered into an agreement with the transferee spouse under which
- the right to use and enjoy a CGT asset passed 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
- created a contractual or other right in favour of the transferee spouse (CGT event D1)
- granted an option to the transferee spouse or renewed or extended an option granted to them (CGT event D2)
- owned a prospecting or mining entitlement, or an interest in one, and granted the transferee spouse a right to receive income from operations carried on by the entitlement (CGT event D3), or
- was a lessor and granted, renewed or extended a lease to the transferee spouse (CGT event F1).
There is no rollover for the transfer of trading stock.