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Divorce and new tax developments
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Divorce and new tax developments

Wendy Campbell Wendy Campbell
3 min read

Talk to Accountants when transferring property between separating couples, as it should take place in the tax year of separation to avoid capital gains tax becoming payable on such transfers.

However, what is the position where a married couple separate, one party remains in the former marital home, the other leaves and the house is subsequently sold? The person who has left the marital home may be liable to pay capital gains tax on his share of the gain.

Up until April 2014 the person who left the marital home had no problems as long as the marital home was sold within three years of the date of separation. However in April 2014 this period was cut short to 18 months.

Not many people are aware of this change and it can cause an unexpected tax liability.

For example, take Phillip and Joanne. They bought a two bedroom flat in London in November 2004 for £400,000. They separated in November 2012. Joanne remained in the marital home and Phillip moved into rented accommodation. They both agreed that the marital home should be sold and that the proceeds of sale should be split 50/50. However the property was not sold until May 2015. At that time, the sale price was £1,220,000. There was no mortgage and after deducting the costs of sale of £20,000 this left a net equity of £1,200,000.

Over a period of 10 years and 6 months, there was a gain of £800,000. As the property had been Joanne’s main residence, she had no capital gains tax to pay on her 50% of the net proceeds of sale. However as Phillip had moved out more than 18 months prior to the sale taking place, he had an unforeseen tax bill to pay in respect of his share of the equity in the property.

Phillip was able to claim the main residence relief for the period of 8 years from November 2004 until he moved out in November 2012 and also for the last 18 months period of ownership (3 years before 6 April 2014). He could not however claim a residence relief for the period December 2012 to December 2013. Calculated on a pro rata basis, a 12 month period over the 10 and a half years, the gain was £38,096. Phillip was able to make use of his annual tax exemption of £11,100 which brought down the gain to £26,996. However as Phillip was a higher rate tax payer, he was liable to pay capital gains tax on that gain at the rate of 28% which left him with an unforeseen tax bill of £7,558.

This example emphasises the need to take into account the tax consequence arising from the sale of the marital home following the breakdown of a marriage. Expert advice is usually needed from an accountant to make sure that the parties are fully aware of all tax implications involved.

Please call specialist family solicitor Wendy Campbell on 0113 320 5000 or email wpc@winstonsolicitors.co.uk for a more detailed look at your situation and to discuss your requirements.

Take a look at our prenuptial agreement calculator to estimate the protection a prenuptial agreement may provide you.

Client feedback

I am very pleased with the service I received from Winstons, this is the second time I have dealt with them for conveyancing services and on both occasions Leasa was incredibly thorough and reassured me every step of the way. When other parties failed to deliver, Leasa ensured things were chased up and delivered/received with accuracy. I would highly recommend and will be sure to use Winston's again for any future property purchases
Charis
Would highly recommend Winston's.Both Leasa and Julie were extremely professional and we recieved regular email and direct call updates.In the middle of an extremely challenging chain, they went above and beyond and became intermediary's liasing with everyone else in order to get the conveyancing completed on time.Thanks again for a great service.Regards
Richard
My conveyancer Samantha and her associate Michelle kept me informed of the progress of my sale throughout the transaction. It was of benefit to me that the Winston office was local with plenty of parking. I would recommend them for any conveyancing
Ms H
Winston’s acted for us with our house sale and onward purchase. They have been excellent from start to finish. Leasa is extremely quick to respond to emails and more than happy to answer any questions. The online system is very efficient and helps keep you up to date with progress of the sale/purchase. Leasa and her team made the whole process so much less stressful than it could’ve been and we can’t thank them enough. We wouldn’t hesitate to recommend them.
Lucy
Teresa and Judith assisted with my recent divorce and i cannot rate them highly enough, i was talked through every aspect and everything was explained in full and i was kept fully updated and imformed of everything that i needed to do and when it was required for. Their patience when i was working away and understanding was especially appreciated.Once that was all complete Amanda and Samantha and the convayensing team sorted the transfer of the house and the paperwork associated with that.I would highly recommend them and thier company for any legal issues you have and would use thier services again without hesitation.
Richard J
Special praise for Emily Spencer ,who is more than efficient , very thorough in her work and I am sure , a very good member of the Winstons team ! Well done her ( plus Jeremy re our registration with the Land Registry .!)
Stuart
A helpful and thorough service that meant I felt confident that the house sale would be handled well.
Helen
Amazing service!
Anonymous
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