Stamp Duty when Seperating - what is meant by agreement

[stamper]

My husband and I are separating with a view to divorcing in the near future.
I am buying out his equity and remortgaging to stay in the house. He is buying a new property with the equity.
We are almost at the point of completing - however my conveyancing solicitor is under the impression that I may be liable for stamp duty.
I was under the impression that in the case of separation this did incur stamp duty.

The amounts at £200,000 equity that I am paying him and £75,000 for his portion of the mortgage. So a consideration of £275,000.
When I read the hmrc advice it says that "If you transfer property because of divorce, seperation or the end of a civil partnership. You don't pay SDLT if you transfer an interest in land or property to your partner as part of an agreement or court order because you're either:
* divorcing
* dissolving a civil partnership"

Can you tell me what they mean here by agreement? Is a written agreement between us enough? Or do they require a court order of some sort?

[stamper]

I just also found this which seems to imply that it can be a written agreement??

https://www.gov.uk/hmrc-internal-manual ... sdltm00550

Scope: What is chargeable: Exempt transactions: On the ending of a marriage or civil partnership FA03/SCH3/PARA3 and FA03/SCH3/PARA3A
Certain transactions made in connection with the ending of a marriage, or a civil partnership formed under the Civil Partnership Act 2004, are exempt from Stamp Duty Land Tax (SDLT).

These transactions are those made between the parties to the marriage or civil partnership as a result of

certain types of court order
an agreement between the spouses/partners in contemplation or in connection to the dissolution or annulment of their marriage or civil partnership
their judicial separation or a separation order
The exemption is not available if the transaction involves someone other than the spouses or civil partners.

[stamper]

Sorry critical typo in the original post - should have read: "I was under the impression that in the case of separation this did NOT incur stamp duty."

[stamper]

Sorry critical typo in the original post - should have read: "I was under the impression that in the case of separation this did NOT incur stamp duty."

[stamper]

Just thought I'd post the rest of the story in case anyone else was in a similar situation.

Spoke to the hmrc stamp duty help person (0300 number so pricey) they were decidedly cagey about telling me what an "agreement" entailed but directed me to the page I posted above SDLTM 00550.

I am now going to draw up an separation agreement with my solicitor. She has changed her mind about my liability.

[maths]

The key point I believe is that the making of any agreement between the two parties (in writing setting our relevant facts agreed and signed by both) must be made in contemplation of (or in connection with) divorce, annulment or judicial separation or the making of a separation order.

[stamper]

Thanks maths - I agree the motive for the agreement is key. I will pass that on to the lawyer drawing up the agreement. I will make sure we specifically mention the fact that we are intending to head for a full divorce.

Spent hours trying to work this out last night... there is almost no publicly available advice on the topic. I know most family lawyers don't like people doing things this way round so that is probably why. Sometimes the practicalities of family life/the housing market mean that it really is the only way forward and is in the interests of all concerned..

Thanks again

[maths]

Unfortunately everything is becoming so specialised that the only way for a typical professional adviser to ensure he/she is not sued is to limit as best they can their areas of expertise. Also when researching a topic bits are found all over the place.

So often family lawyers are not tax knowledgable and perhaps vice versa and HMRC are clearly of little practical value....even assuming you can get to speak to anyone.

Getting bogged down in the niceties of SDLT at a time of stress is not a good idea !!