Tax considerations on separation and divorce
It has been well documented that recently we have seen a spike in the number of divorce cases, in part due to the additional strain placed on relationships during the pandemic.
Furthermore, in April 2022 there will be a significant change in divorce law for England and Wales, which will permit a ‘no fault’ divorce and generally make the divorce process simpler. Under the new law, a simple statement is required that the marriage has irretrievably broken down and there will no longer be any need to point blame. It is anticipated that this will lead to a further influx of divorce filings in the coming months.
With that in mind, although tax may not be at the top of the agenda when dealing with a divorce, it is important that those individuals seek the advice of a tax specialist as early as possible in order to ensure assets are distributed in the most tax efficient way.
What are the key tax issues to consider?
Below we summarise some of the key issues to bear in mind on separation.
Capital Gains Tax (CGT)
If you are married or in a civil partnership, any assets transferred or gifted between you and your spouse/civil partner will be at a ‘no gain no loss’ basis, meaning that no taxable gains arise on the transfer of assets.
Should you separate, you have until the following 5 April to make any transfers under the ‘no gain, no loss’ provisions.
From the following 6 April, while you are separated but are still legally married or in a civil partnership, you will be ‘connected persons’ for CGT purposes. This means that any transfers of assets between you will be deemed to take place at market value, even if no cash has exchanged hands. The result is that the person making the transfer could be left with a CGT liability, despite having not received any consideration to pay the tax.
Family home and Private Residence Relief
It is important to consider the potential tax consequences when the family home is sold or transferred, particularly where the transferring spouse or civil partner has already left the marital home following separation.
For the purposes of Private Residence Relief (for CGT purposes), the departing spouse is deemed to be resident in the house during the last nine months even if they have already bought or acquired another house as their main residence. Any sale or transfer of property after this 9-month period could give rise to a CGT charge.
In certain cases, it is possible for this 9-month period to be extended, but the property must be transferred to the occupying spouse as part of the divorce settlement, and the transferor must not have elected for any other property to be their main residence in the meantime.
Inheritance Tax (IHT)
Transfers between spouses are usually exempt from IHT. This remains the case during the period from separation to the decree absolute.
A transfer made after the divorce has been finalised will be a ‘Potentially Exempt Transfer’ (PET). This transfer can be liable to IHT if the donor dies within seven years from the date of transfer.
It is also important to bear in mind that divorce does not revoke an existing Will. As such, we recommend that this is reviewed and updated as appropriate.
Income tax
The transfer of assets under a divorce settlement is not subject to income tax.
However, if you have received income producing assets from your former spouse, such as income bonds or shares, you will be taxable on the interest and dividend income received since the date of transfer.
How can we help?
Timing is key, so it is important to contact us as early in the process as possible in order that we advise you accordingly.
