SDLT and Divorce: Transferring Property and the 3% Surcharge
Stamp duty on a divorce or separation can be complicated and it is very important to take advantage of the exemptions from stamp duty...
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The transfer of a house or flat between husband and wife or civil partners is exempt from stamp duty (SDLT) on a divorce or separation if the transfer is made under a court order or under an agreement between the couple in connection with the dissolution of their marriage or a separation order.
There is no general exemption from SDLT for married couples who transfer property to each other while they are living together. However, the SDLT on the transfer will be charged at the normal residential rates and the 3% surcharge for additional dwellings will not apply.
However, a married couple who are living together cannot each buy a house without paying the 3% surcharge on at least one of them because each spouse is treated for SDLT purposes as owning any dwellings owned by the other spouse. For more information on stamp duty implications of transfering property during divorce, click here.
If a couple agree to separate permanently but without getting a court order they will be treated for SDLT purposes as an unmarried couple. This means that for the purposes of the 3% surcharge each spouse can buy a house without being treated as owning any property the other spouse owns. This also means that transfers of property between them will be exempt from stamp duty.
A transfer of property between a couple on a divorce, annulment, judicial separation or a separation order will be exempt from SDLT as long as they are the only parties to the transfer or transfers and the transfers are made under:
Where one spouse (“A”) owns a dwelling or a share of a dwelling and in connection with matrimonial proceedings a property adjustment order has been made by the court in favour of the other spouse (“B”) and the dwelling is B’s only or main residence but not A’s only or main residence, then A’s ownership of that dwelling is ignored for the purposes of the 3% surcharge if A buys another dwelling.
It is very important to study the stamp duty rules for divorce and separation carefully and get the timing right. For example, Bob and Diane got divorced in September 2020 and Bob (who did not own any other residential property) was required by the court order to transfer his share of the matrimonial home to Diane. Bob made the transfer of his share to Diane in October 2020 and the transfer was exempt from stamp duty on divorce. As Bob no longer owned a dwelling, he could then purchase another dwelling without having to pay the 3% additional rates of stamp duty.
If Bob had also owned other residential property at the time that he was keeping such as a buy to let flat, then he could also avoid the 3% surcharge if he qualifies for the exemption for replacing his only or main residence. In order to qualify for the main residence replacement exception from the 3% additional rates he needs to buy his new main residence no more than 3 years after the earlier of the date of his transfer to Diane in October 2020 and the date he actually moved out of their family home. If Bob moved out of the matrimonial home in December 2016, then he is too late to qualify for the main residence replacement exemption and will have to pay the 3% surcharge on his new residence.
If Bob had retained his share of the matrimonial home when he moved out and Diane continued to live there to raise their children, then when Bob bought a replacement main residence, he would have to pay the 3% additional rates. However, if the couple get a property adjustment order in favour of Diane then for stamp duty purposes, Bob’s share in the matrimonial home will be ignored for the purpose of the 3% additional rates and he will not have to pay the 3% surcharge on his later purchase if he does not own any other residential property. It is important that the couple get the property adjustment order before Bob buys his replacement home, otherwise he will have to pay the 3% additional rates and cannot get a refund when the order is made.
If you or your clients are facing a divorce or separation contact Patrick Cannon to ensure that the stamp duty exemptions on a divorce, separation or dissolution of a civil partnership are fully taken into account and any relief is claimed. Patrick can also advise on the Capital Gains Tax consequences at the same time.