Document ID: chunk:federal_register_of_legislation:C2025C00014:section:328:p1
Version: federal_register_of_legislation:C2025C00014
Segment Type: section
Provision Reference: s 328 (pt 1/3)
Character Range: 1885517–1888075

328  Non‑resident family trusts
 (1) Subject to subsections (4) and (5), for the purposes of this Part, a trust is a non‑resident family trust in relation to a natural person at a particular time if, and only if, at that time:
 (a) the trust is either:
 (i) a post‑marital or post‑relationship family trust in relation to the natural person; or
 (ii) a family relief trust in relation to the natural person; and
 (b) the trust is constituted by:
 (i) a deed of trust or other instrument; or
 (ii) an order or declaration of a court.
 (2) For the purposes of this section, a trust is a post‑marital or post‑relationship family trust in relation to a natural person at a particular time if:
 (a) either of the following conditions is satisfied:
 (i) the trust was created pursuant to:
 (A) a decree or order of dissolution or annulment of marriage, being a dissolution or annulment that, because of the Family Law Act 1975, has effect, or continues to have effect in Australia or is recognised as valid in Australia; or
 (B) a decree or order of judicial separation or a similar decree or order;
 (ii) the trust was created in consequence of the break‑down of a de facto relationship; and
 (b) at that time, the only persons who benefit, or are capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust (which persons are in subsections (4) and (5) called the primary potential beneficiaries) are natural persons who:
 (i) are not Part X Australian residents at that time; and
 (ii) are covered by any of the following categories:
 (A) the spouse or former spouse of the natural person;
 (B) a child of the natural person;
 (C) a child of the former spouse of the natural person, being a child who was such a child at a time when the former spouse was the spouse of the natural person;
 (D) a child of the spouse of the natural person.
 (3) For the purposes of this section, a trust is a family relief trust in relation to a natural person at a particular time (in this subsection called the test time) if:
 (a) the only persons who benefit, or are capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust (which persons are in subsections (4) and (5) called the primary potential beneficiaries) are natural persons who:
 (i) are identified by name in the trust deed or instrument, or in the court order or declaration, constituting the trust; and
 (ii) are not Part X Australian residents at that time; and
 (iii) are covered by any of the following categories:
 (A)