Divorce, Declaration of Trust, and Beneficial Ownership?

Divorce, Declaration of Trust, and Beneficial Ownership?

11:53 AM, 28th February 2022, About 4 months ago 21

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Hi all, In brief, this is the background of my situation:

I Own 2x BTL properties as tenants in common with my now ex-wife, split as 80/20 %.
There is an existing Declaration of Trust which splits the income 80/20 as well, in her favour.
Properties both have a small mortgage on them – approx. £52K on each BTL.
Property values are in the order of £240, 000 each
We have a financial consent order (FCO) which has been sealed by the court.
The financial consent order grants me the 2 BTL properties.
FCO was granted on 18th Feb 2022, and decree absolute granted on 24th Feb 2022.
The FCO states that I must indemnify my former spouse against payments or charges related to the mortgage, if she cannot be released from the current mortgages.
The FCO states that I must indemnify my former spouse against current/future CGT liabilities.

Issues:
We have 56 days to complete the directions in the FCO.
The end of the current tax year is looming, and so we must execute the property related transactions prior to 5th April 2022 in order to take advantages of the tax breaks regarding CGT, within the current tax year of divorce.

Option 1:
Transfer legal ownership of properties to my sole name, and obtain the permission of the mortgage company to remove my ex-wife from the mortgage.

Option 2:
Leave legal ownership as is, and execute a further declaration of trust, making me the beneficial owner of the income and underlying property assets.

Pro/Con
Option 1:
Requires the mortgage company to release my ex-wife from the mortgage
Requires me to pass financial affordability tests with current lender – I’m 3 years into a 5 year fix – so would prefer not to redeem mortgage. I work as a contractor, and so this could present a hurdle with my lender in terms of fitting their standard lending criteria.
This option would slow down matters, and I may miss the 5th April deadline which would be catastrophic for me in terms of CGT.
It keeps things tidy, as I would be transferring both legal and beneficial ownership to my sole name.

Option 2:
As I am not changing the legal ownership at HM Registry, only the beneficial ownership, I do not need to get my lender involved.
It’s going to make the process quicker to execute.
It leaves things slightly messy, as whilst I would be 100% beneficial owner, the underlying legal ownership is still split 80/20 in favour of my ex.

Questions:
For option 2, what I do not know is:

a) What are the CGT implications of doing this in terms of future sale of the properties?

b) As am only changing beneficial ownership not legal ownership, would this mean I would need to obtain my ex-wife’s consent for any future sale?

c) Would my ex-spouse have to update her will to pass legal ownership onto me in the event of her death?

d) The FCO which has been sealed by the Courts and awards me 100% of BTL properties, does this give me sufficient protection further down the road, if I go option 2 route?

e) For both options, as this transfer is in connection with a divorce, so long as I complete within the current tax year, should the transaction be free of SDLT?

f) My assumption for both options, is that legal ownership and beneficial ownership are separate, and that in terms of CGT liability – HMRC is only interested in beneficial ownership, not legal ownership?

g) As the FCO gives us both 56 days from 18th Feb to execute the property transfers (which would take us past the 5th April), does the FCO alter how HMRC would
look at the matter in terms of CGT and SDLT, so long as everything was completed within the 56 day limit specified?

Finally, are there any other options I haven’t considered, which I perhaps could consider or any other immediate of future pitfalls?

I’m not expecting all my questions to be fully answered but I would like to know from Mark, given this background, is this something his tax planning consultation would cover?

Thanks in anticipation of any help and guidance.

Paul



Comments

Simon Lever View Profile

18:59 PM, 10th March 2022, About 4 months ago

I am not sure that the split detailed by Chris Bradley is correct.
If you have a property partnership, even if there is no partnership agreement, then you should be able to split the profits however the partners agree. And the split can be changed year on year. H & W together cannot form a property partnership but if they add their children (over 18), for example, then profit shares can be changed without reference to H&W.
There is not room to go into it in detail so I suggest that you start with the HMRC property manual here:
https://www.gov.uk/hmrc-internal-manuals/property-income-manual/pim1030

It is in plain English!
It is also only the HMRC view and may not be law until it is contested in court.
If HMRC accept there is a partnership then H&W profit split can be any percentage they like.
Speak to Mark Alexander about what constitutes a partnership as he has more experience than me.

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