CGT Exemptions: Transfers Between Spouses, Separated Spouses, and Divorced Couples

Cover Image for CGT Exemptions: Transfers Between Spouses, Separated Spouses, and Divorced Couples

| Courtney Price

Capital Gains Tax (CGT) is a tax on the profit realised on the sale of a non-inventory asset. However, when it comes to familial relationships like marriage, separation, or divorce, CGT exemptions can significantly alter the financial landscape.

In Introduction to Capital Gains Tax (CGT): Exemptions, Naomi Butler delves into the intricacies of CGT exemptions concerning transfers between spouses, separated spouses, and divorced couples, highlighting key considerations and potential pitfalls.

Transfers Between Spouses

Under normal circumstances, transfers of assets between spouses are exempt from CGT. This exemption applies as long as the spouses are legally married and not separated. The spouse receiving the asset is deemed to acquire it at the date and value the person disposing of the asset originally acquired it. This rule ensures that the asset's original acquisition cost basis and date are carried over to the receiving spouse, which can be particularly advantageous in managing tax liabilities effectively.

For instance, if one spouse purchased an investment property years ago at a significantly lower price than its current market value, transferring this property to the other spouse would not trigger CGT at the time of transfer. This allows for strategic financial planning, especially in anticipation of future sales or disposals of the asset.

Separated Spouses

The dynamics change considerably when spouses are separated. The key factor here is the timing and formal recognition of the separation. If assets are transferred before the couple legally separates, the transfers still qualify for the CGT exemption. However, once a separation is legally recognized, whether through a judicial separation under family law acts or similar decrees, the rules alter.

Tax advisors need to be particularly vigilant about the timing of such transfers. They must ensure that their clients are fully aware of the potential tax implications if transfers occur after the legal recognition of a separation. In these cases, typical CGT rules apply, and any gain from the transfer of assets might be subject to tax, which could lead to unexpected financial burdens.

Divorced Couples

For divorced couples, the situation resembles that of separated spouses, with the added complexity of the divorce decree and any associated orders regarding the disposition of property. If a court order exists that mandates the transfer of assets between divorced spouses, these transfers might still be exempt from CGT, provided they are done according to the legal requirements and recognised under local jurisdiction.

It's crucial for divorced individuals to consult with tax professionals to navigate these waters carefully. The specifics of the divorce decree and the nature of any court-ordered transfers can significantly impact the tax outcomes.

Practical Considerations and Advice

  1. Engagement Rings: An often-overlooked aspect of CGT is the treatment of engagement rings. If an engagement ring is valued above a certain threshold (e.g., $2,540), it could be considered a disposal of an asset, potentially triggering CGT or other tax liabilities like gift tax, depending on the jurisdiction.
  2. Living Arrangements: For spouses who choose to live separately but are not legally separated, the situation can get complicated, especially concerning the Principal Private Residence (PPR). Tax laws generally assume one PPR per married couple, which can lead to complications if spouses maintain separate residences.
  3. Clear Communication: Tax advisors must maintain clear and open communication with their clients, providing candid advice on the potential tax implications of their marital decisions. Understanding the nuances of each client’s situation is crucial in providing accurate guidance.

Navigating the CGT implications of transfers between spouses, whether intact, separated, or divorced, requires a thorough understanding of tax laws and careful consideration of individual circumstances. By staying informed and seeking expert advice, individuals can manage their assets in a way that minimises their tax liabilities while complying with legal requirements.

For the full session, please click here. In this course Naomi Butler covers the following topics;

  • Annual Exemption
  • Wasting Chattels
  • Non-Wasting Chattels
  • Principal Private Residence Relief
  • Transfers between Spouses

The contents of this article are meant as a guide only and are not a substitute for professional advice. The author/s accept no responsibility for any action taken, or refrained from, as a result of the material contained in this document. Specific advice should be obtained before acting or refraining from acting, in connection with the matters dealt with in this article.

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About the Author

Courtney Price is a content creator for CPDStore. Courtney joined us during the COVID-19 pandemic and has been involved in the ever-evolving world of accounting ever since. Her passion for reading and writing, coupled with her degree in copywriting from Vega School has allowed her to channel her creativity and expertise into crafting engaging and informative content.


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