Tax Implications of Separation and Divorce

Tax Implications of Separation and Divorce

When a marriage or civil partnership breaks down the last thing on your mind is the effect that the break-up might have on your relationship with the tax man. However if you don’t factor tax in at the outset, you could be in for a nasty surprise.

There are a number of considerations that you should discuss with your family law adviser, who can, in turn, refer you to a tax specialist:

  1. Transferring assets between separating spouses

Capital Gains Tax (CGT) is payable when you make a profit or gain on an asset you sell or give away over and above your tax free exemption. However CGT does not apply on transfers between spouses or civil partners and will continue to apply during the tax year of the separation and any transfer will need to be completed within that same year to avoid potential CGT liabilities.

  1. Transfer or sale of the family home

Tax relief applies where the family home is your Principal Private Residence (PPR) so that there may be no CGT payable on any gain. Where one spouse moves out, the relief will continue for an allowed period so long as another property has not been elected as your PPR. It is important to keep an eye on this period of absence. In general, the period of PPR relief will only now apply for 9 months since occupation (18 months for disposals prior to 6 April 2020). This period can, however, be extended provided certain conditions are satisfied.

  1. Family businesses

The tax exemption for transfers between spouses in the tax year of separation also applies to assets held within a family partnership or shares in a family company.  Where the Agreement or order by the court transferring the partnership asset or company shares is dated after the tax year of separation, it may be possible to defer the tax to be paid by applying for “hold-over relief” if certain qualifying criteria are met. If a partnership operates between a husband and wife who separate, it is not unusual that the partnership will be dissolved or will continue in the name of one spouse only, sometimes with a new partner.  This could lead to tax issues depending on how the underlying partnership assets are held.  Where funds are to be withdrawn from a capital account, income tax will be payable on the profits taxable in the year of cessation of the partnership.

  1. Tax exemptions on death of separating spouses

As well as losing the exemption for CGT on separation, spouses will also lose their exemption on inheritance tax (IHT) charges which would not apply when they were married.  The IHT exemption will only apply up to the date of divorce.  Transfers between spouses will continue to be exempt from a charge to IHT where the transfers are not intended to be made in return for something or where the transfer is made for maintenance of the family.

  1. Income tax and tax credits

Separating spouses have a duty to support one another financially by paying aliment until they are divorced.  Sometimes this payment will continue after divorce where it is ordered by the court or as part of an agreement.  The spouse making the payment of aliment from income will be taxed on their gross income from the initial payment received.  Maintenance payments received are not subject to income tax by the spouse receiving the payment. Tax credits for children should be claimed by the spouse with whom the children live.  This can be unclear where there is a shared care arrangement between parents.  However as the test for tax credits is now means tested, it is expected that it is the spouse who would qualify for the credits that would claim where the children are living with each parent on a shared basis.

To avoid a situation where the tax issues on separation or divorce become taxing, or are overlooked, it is always worthwhile seeking sound advice from a family law solicitor who can direct you to the appropriate tax expert.  Where there is a family business some careful consideration should be given as to how the business will be maintained in the future and plans made accordingly bearing in mind the tax consequences.

  • For further family law advice, please contact Janice Jones or Danielle Edgar, or speak to your usual Anderson Strathern contact.
  • For specialist tax advice, please contact Martin Campbell or Alison Pryde, or speak to your usual Anderson Strathern contact.
  • You may be interested in our other tax insight articles and in our Insight Hub, a resource which is helping businesses remain resilient through these challenging times.

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