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Defining Conjugality in the Family

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Published on 01 Jul 05 by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE

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 TEP is the principal of a specialised commercial law firm, VdV Legal. With over 25 years’ experience advising Australian businesses, her practice focuses on taxation and trust law with an emphasis on business structuring, tax planning, business succession and intergenerational transfers. Julie is The Tax Institute’s SME Chartered Tax Adviser for 2017 and a regular speaker for the Tax Institute and other professional organisations. - Current at 25 November 2025
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