Separating Couples and Capital Gains Tax  

Posted by Hannah Porter on 5th March 2019

Last updated 28th September 2020

Spring is around the corner – and so is 5^th April 2019. This is a key date for separating couples when considering capital gains tax and transfer of properties. Upon the dissolution of your marriage, capital gains tax is the most important tax consequence. The tax implications for both you and your spouse of any proposed payments or transfers should be considered before any order is made or an agreement reached.

What is capital gains tax?

Capital gains tax is potentially payable to HMRC whenever there is a disposal of an asset which has gained in value since it was acquired. Disposal is defined as a transfer of ownership, a commercial sale, a gift or even a court order. Capital gains tax is payable by the person disposing of the asset.

If you have finalised your divorce without finalising your financial matters it is highly unlikely that you will be able to claim any tax advantages even if you separated within the last tax year.

What assets do capital gains tax apply to?

Capital gains tax applies to most assets which might be transferred between you and your spouse. This includes stocks and shares, residential properties, holiday lets and commercial properties.

Former matrimonial home

• The former matrimonial home is usually exempt from capital gains tax as it can be elected by one or both parties as the principle private place of residence. Separating couples have 18 months from their separation to elect the former matrimonial home as the principle private place of residence. However, these rules are changing and from 2020 there will only be nine months in which to elect the family home as the principle private place of residence.
• If the family home is sold or transferred more than 18 months after you or your spouse vacated the property and the value of the home has increased, part of this gain in value will be taxable. How much is taxable will depend upon any capital gains tax annual exemption. It may be possible to reduce this to a small amount or even nil.
• If your former matrimonial home has land and the whole property is over 0.5 hectares and is the principal place of private residence, relief can only apply to the home and garden.

Second properties

If the transfer of a second property takes place within the tax year of separation then the transfer will be exempt from capital gains tax. If you separated after 6^th April 2018 you have until 5^th April 2019 for this transfer to take place. It is possible to transfer the beneficial interest using a declaration of trust if you do not have enough time to do the legal transfer of the property.

Shares in a company

Capital gains tax is payable upon sale or transfer.

How does this affect me?

Every aspect of the tax system is linked to the financial year, 6^th April to 5^th April. A married couple who have separated can retain the tax advantages enjoyed by married couples until the end of the tax year in which they separate. If you separated after 6^th April 2018, it is important to transfer any property that is not the former matrimonial home, before 5^th April 2019 if you wish to avoid capital gains tax on transfer.

If you are considering transferring a property to your spouse or being a recipient of a transfer of any property, seek legal advice as soon as possible. You will need to obtain tailored advice in relation to any potential capital gains tax liability you may face and how to mitigate this.

Any transfers of properties that cannot benefit from the principal private place of residence relief and take place after 5^th April 2019 will attract capital gains tax, even if you remain legally married to your spouse.

If you have any queries about this article or wish to book an initial free appointment to discuss your matrimonial matters and capital gains tax please contact Hannah Porter on 01392 421 777 or email [email protected]

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