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Defining Conjugality in the Family


This paper considers the meaning of the term ‘spouse’ in the context of s272-90 and s272-95 of the Income Tax Assessment Act 1936 (1936 Act). The circumstances in which a Family Trust Election (FTE) may be required and its effect upon the future distributions of the Trust are outlined in order to demonstrate the trustee’s need for certainty.

The uncertainty inherent in this area of the definition of the family group is explored in the light of various conventions of judicial interpretation and with regard to the possible legislative intent behind the use of the word ‘spouse’ in this context.

The paper concludes that despite the need for certainty current legislation cannot provide certainty and therefore requires clarification.

Author profile

Julie Van der Velde CTA
Julie Van der Velde, CTA, is the principal of a specialised commercial law firm, VdV Legal, and has degrees in Business and Law and a Masters of Taxation Law. With over 20 years experience advising South Australian businesses, her practice focuses on taxation and trust law with an emphasis on estate planning, tax planning, business structuring, business succession and intergenerational transfers. Julie is The Tax Institute’s SME Chartered Tax Adviser for 2017 and is listed as a recommended Wills, Estates and Succession Planning lawyer in Doyle's Guide 2017. - Current at 22 January 2018
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