Stamp duty on a new property during divorce - Help

[Macy46]

Hi
I'm hoping for some advice re stamp duty. I'm currently going through a divorce which has been dragging on for 5 years. I've agreed that I'll keep paying the mortgage on the family home as my wife hasn't got the funds and wants to stay in the house. However I would like to buy a property now and can't seem to find an actual answer as to whether I'd have to pay the increase on stamp duty as it's a second home. I'm happy to have my name removed from the deeds on the family home, as I'll just be paying the remaining amount on the mortgage and the property will be hers. I'm hoping that I won't need to pay the 3% stamp duty on a new property, or that I'll be able to claim it back once the divorce is finalised.
I've spoken to tax accountants, my divorce solicitor and a conveyancing solicitor and nobody can really give me a straight answer..

Thank you

[AdamS93]

It depends, if you own another property on the date of purchase you will be subject to the additional SDLT - however, if you sold/transferred the property within 18 months you could reclaim this additional SDLT.

Married couples are treated as one for the purposes of the additional SDLT so therefore, even if you transfer the property before you are officially divorced you will still be paying the additional SDLT - this is where your problem may be with a long dragged out divorce.

If you purchase the property after you are officially divorced and you have transferred the property before purchasing the new property you will pay the normal SDLT rates.

[SDLT Geek]

I disagree with most of the points AdamS93 makes.

The relevant period is 36 months (assuming the property is England, Wales or Northern Ireland and not Scotland) rather than 18 months.

It is simply not true to say that married couples are treated as one for the purposes of SDLT, least of all when they are separated!! The single unit misconception comes from some brief HMRC guidance which is commented on here: https://www.zoopla.co.uk/discover/buyin ... -debunked/

Now to be more constructive for Macy46, here are some points to consider:

1. Your problem is likely to arise from you still retaining an undivided share in the former matrimonial home. What share do you have?

2. If your share is worth under £40,000 it should not count against you for 3% surcharge purposes (though that is the value without taking off the mortgage).

3. Have you already transferred a share in the property to your wife? If so, you need to look at the rules for the exception from the surcharge for the replacement of an only or main residence and the meaning of the words "dispose of a major interest". Not easy.

4. Has there been a court order / consent order? Perhaps a Mesher order? What does it say?

5. Some orders help by declaring an immediate trust such that a share in the property passes in equity even if a lender will not allow legal title to pass.

6. Some orders transform an undivided share in land to a debt, the debt to be paid out of the sale proceeds when the property is sold and perhaps secured by a mortgage. The outgoing spouse then has no share in the property to count against him.

7. Could your property owning history save you? Did you "bridge" when the matrimonial home was bought? So that you sold a former home after you bought the matrimonial home? The odd rules we have do turn on odd things like that!

[SDLT Geek]

Some changes in the Autumn Budget take effect today concerning the 3% stamp duty surcharge rules in this area. The changes help people in this kind of position. But they depend on a property adjustment order having been made before.