• Home
  • Latest
  • TV
  • Mishcon Academy: Digital Sessions – Tax Aware: Marriage: How to prepare for its opportunities and challenges

Mishcon Academy: Digital Sessions – Tax Aware: Marriage: How to prepare for its opportunities and challenges

Posted on 19 March 2021

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

This session was recorded on 11 March 2021. The information in the film was correct at the time of recording.

To review the key insights from the event, please view the film or read the write up below.

What are the options for a couple looking to move together to the UK if they have no connection with the UK?

For an unmarried couple/couple not in a Civil Partnership ("CP")

  • If one is an EU national, they would have been able to move to the UK on this basis if they had been living in the UK before 31 December 2020 or if one of them already has pre-settled status.
    • Post-Brexit, they will not be entitled to move to the UK by virtue of being an EU national.
  • The most flexible visa category may be the Investor visa. It is not tied to a particular job or role in the UK, and it offers the main applicant a fast track route to Indefinite Leave to Remain (ILR).
    • To qualify, the applicant must have access to at least £2m in cash funds, already have a UK bank account open for the purposes of investing not less than £2m, and evidence their investment funds were acquired through legitimate means, amongst other requirements.
    • To apply to come to the UK as unmarried partners, the couple must be able to demonstrate to the Home Office that they are in a relationship akin to marriage – usually shown by having lived together for two years.

For a married couple/couple in a CP

  • The marriage/CP must be legal in the country in which it took place and recognised in the UK.
  • The couple will need to provide a valid marriage/CP certificate, and potentially further evidence of the genuine nature of the relationship.

Pre-arrival considerations

From a family law perspective

  • A couple need to consider that 12 months after entering the UK, the English jurisdiction is potentially their habitual residence and they could get divorced here.
  • Even if a couple are divorced in their native country, if an ex-spouse establishes jurisdiction in the UK they can make further financial claims using a Part III claim.

From a tax perspective

  • They will need to consider whether they wish to become UK residents.
    • Non-residents only pay tax on their UK income and gains.
    • UK residents normally pay UK tax on their worldwide income and gains.
  • Since 6 April 2013, there is a Statutory Residence Test (SRT) which takes into account: each tax year separately, the amount of time you spend/work in the UK, and the connections you have with the UK. If someone is in the UK for 183 or more days in a tax year, they will be UK resident for the entire year.
  • UK residents who have their permanent home or 'domicile' outside the UK may not have to pay UK tax on foreign income and gains.
  • A special basis of taxation called the "remittance basis" is available for individuals who are UK tax resident but who are not UK domiciled or deemed domiciled in the UK.
    • The remittance basis means non-UK income and gains are not taxable unless and until those funds are brought into or used in the UK. It is free for the first 7 years.
  • Assets which do not represent or derive from post-arrival non-UK income and gains (Clean Capital) can be brought into the UK without triggering UK income tax or Capital Gain Tax (CGT). Keeping Clean Capital separate from post-arrival non-UK income and gains is important.
  • They should consider how to select and manage suitable investments/investment-holding entities and whether changes should be made to employment arrangements and procedures for the management of non-UK companies to ensure they are not brought onshore.
What are the issues to consider when a homeowner lives with a non-owner partner who only contributes to the general living costs?

For an unmarried couple/couple not in a CP

  • If the parties are unmarried and if the property was bought in one party's sole name, they will be treated as the legal/beneficial owner unless the non-owner can evidence financial contribution.
  • Common law marriage does not exist and therefore it is important to record the intentions of the parties concerning ownership in a Cohabitation Agreement or Declaration of Trust.

For a married couple / couple in a CP

The Family Court has the power to override legal ownership, so this needs to be a factor. If property was pre-owned, properly record and try and protect it in a Pre-Nuptial Agreement.

From a tax perspective

  • There is not much flexibility when it comes to a UK resident non-domiciled person purchasing a personal home. It may be better for the house to be purchased by the individual (not using any form of special purpose vehicle).
  • Clean Capital and bank borrowing (mortgage) should be used for the purchase. The mortgage should, subject to certain conditions, be deductible from the value of the house for IHT purposes.
  • SDLT applies to non-UK residents and is paid at the same rates on purchases of UK property as is paid by UK resident buyers.
  • From 1 April 2021, SDLT for overseas buyers will include a surcharge of 2%.
    • The surcharge will apply if one or more purchasers is non-resident and for this purpose there is special test of residence.
    • The legislation will allow for the repayment of the surcharge to individuals who become UK-resident after submitting their land transaction return.
  • The property owner should consider creating a Will as an unmarried partner will not benefit under intestacy rules and, if the deceased was not domiciled in the UK, their partner cannot make a dependent's claim.
What should be considered if the homeowner wants to transfer half of their interest in the property to the other partner?

For an unmarried couple/couple not in a CP

  • A relief from CGT called Principal Private Residence relief (PPR) may apply if the property is the transferor's only or main home and, if non-resident, they spent at least 90 days in the home during each tax year of ownership.
  • For IHT purposes, the gifted share of the property is a potentially exempt transfer (PET).
  • If there is a mortgage over the property, SDLT may be due on balance of the mortgage outstanding and which is taken on by the transferee. Marital status does not affect the application of SDLT.

For a married couple/couple in a CP

  • PPR is not relevant because transfers of assets between spouses/CP do not usually give rise to a CGT charge. The assets are deemed to be transferred at a value that gives rise to neither a gain nor loss. This rule only applies to spouses that are living together at some point during the tax year.
  • Spouses are exempt from IHT and this continues throughout separation right up and until a decree absolute. The exemption is limited to £325,000 where there is a transfer from a UK domiciled spouse to a non-UK domiciled spouse.
What should a non-UK domiciled couple who want to get married, or enter into a CP, consider?

From a family law perspective

  • The process for entering into a marriage or a CP is very similar.
  • The marriage/CP must be legal in the country in which it took place.
    • Same-sex unions are not recognised in all jurisdictions.
  • If an international couple are considering a pre-nuptial agreement (Pre-Nup), they need to consider the different jurisdictions the Pre-Nup may need to apply to in case they elect or are forced to divorce elsewhere because their spouse has commenced proceedings in different country.

From a tax perspective

  • Income tax: married couples are taxed independently of each other.
  • CGT: transfers of assets between spouses/CPs do not usually give rise to a CGT charge because of the no gain no loss treatment.
  • IHT: transfers between spouses are exempt from IHT and this continues throughout the period of separation up until the decree absolute. Watch out for mixed domicile status.
  • New Wills may need to be made - marriage revokes a Will unless made in contemplation.
What should a non-UK domiciled couple who want to get divorced consider?

From a family law perspective

  • If both individuals are foreign they may decide to divorce in respective native countries.
  • Absent a Pre-Nup, the starting position is that each party is entitled to 50% of the wealth built up during the marriage.
  • Child custody arrangements – the Court will not intervene unless it has to.

From a tax perspective

  • The no gain no loss treatment continues for transfers made in the tax year of separation.
  • If the transfer takes place outside the tax year of separation, in order for full PPR to be available, the disposal must take place within 9 months of the property ceasing to be the main residence.  There is further limited relief if the transfer is between the parties and in connection with a divorce or dissolution.

From an immigration perspective

  • Whoever is the dependant for visa purposes will need to apply for a new visa.
  • They will also need to inform the Home Office when the marriage ''ceases to subsist,'' which can be difficult to ascertain.
  • The visa options open to the dependant will very much depend upon their current circumstances. For example, whether there is any relevant employment in the UK or intention to set up and run a business of their own. Applying for an Investor visa in their own right may also be an option.
  • In the majority of cases, their time to ILR would begin again.

 

Stephanie Pierce

Welcome everyone, I am Stephanie Pierce and I will be your host today.   Today we are discussing marriage and civil partnerships and how to prepare for its opportunities and challenges in the real world.  Today, I am joined by my colleagues Stuart Adams, a Legal Director in Private Tax and Wealth Planning; Fran Rance, a Managing Associate in the Immigration Team and James Rees, a Managing Associate in the Family Team.  So, today we will be going through our scenario and we will be considering Jamie and Alex.  We have kept the names deliberately neutral and will be using gender-fluid terms throughout this webinar. 

As you can probably tell from this slide, Jamie and Alex meet in Singapore, which is incidentally where Mishcon de Reya opened an office last year.  Jamie is originally from Germany and is a German citizen.  Alex is from Singapore and is a Singapore citizen.  Neither have any connections to the UK.  Jamie’s net worth is approximately £20 million.  Alex’s net worth is approximately £5 million.  They each own cash investments and properties in Germany and Singapore, respectively.  Jamie and Alex decide that they would like to move to London.  This decision was made post-Brexit.  So, I think the first question must go to Fran, our immigration expert.  What are the options for Jamie and Alex to move together to the UK if they are unmarried?

Fran Rance

So, there are many different immigration categories and the best option will depend on the couple’s exact circumstances, what they plan to do in the UK and their long-term goals.  In this scenario, the most flexible visa category for the couple may be the investor visa and that’s because it’s not tied to any particular job or role in the UK and so would allow the couple a high degree of flexibility.  It also offers main applicant a fast-track route to indefinitely leave to remain in the UK, also known as settlement or permanent residency.  The applicant must have access to at least £2 million in cash funds at the time of the application or have already invested £2 million in the UK in investments permitted under the immigration rules.  They will also generally be expected to evidence the source of their investment funds.  The investor visa is just one option and there may also be other options which apply, for example, if one of the couple has a job offer from a UK company they may be able to apply for a skilled worker visa.  As the couple are unmarried, in order for either Alex or Jamie to be included as a dependent, they must be able to demonstrate that they are in a relationship that is akin to marriage.  And the way the Home Office ordinarily expect that to be demonstrated is for the couple to have been living together for two years and be able to provide documents to evidence that.  If you’re married or in a civil partnership you would just need to provide evidence to show that and perhaps one piece of evidence to show you’re currently living together.  In terms of the relationship, there are also important considerations to take into account from a family law perspective.  So, I’ll hand over to James to discuss those. 

James Rees

Irrespective of your original nationality on whatever immigration basis you come to the UK, once you’ve been living here for 12 months the English Family Court is likely to consider that it has jurisdiction over your marriage on the basis that England has become your spouse’s – you or your spouse’s habitual residence.  In circumstances where London has earned a reputation as the divorce capital of the world, that always needs to be a factor in any decision to relocate to the UK.  A further complication which everyone should know about is that even if someone has already been divorced in their native country and then come to the UK, if their ex-spouse is also able to establish certain jurisdiction criteria they can effectively make a further financial claim in this country against you their former spouse.  This is called a Part Three claim and it essentially provides for a top-up award by the English Court if the Court considers that the financial settlement received in the party’s native country was insufficient. 

Stephanie Pierce

And so, turning to a personal tax perspective, Stuart are there any tax issues that Jamie and Alex should consider before arriving in the UK?

Stuart Adams

In the UK, since 2013, we’ve operated a statutory residence test.  And what this does is it allows you to work out your tax resident status for a given tax year.  If Jamie and Alex have been or will be in the UK for 183 days or more in a tax year, then they will be UK tax-resident for the entire tax year.  The next thing that’s worth looking at is the special rules for UK residents who have a permanent home or also known as a domicile abroad.  When UK residents have a permanent home or domicile outside of the UK, they may not have to pay UK tax on their foreign income and gains.  Individuals who are UK tax-resident but are non-domiciled and are not otherwise deemed domiciled for UK tax purposes, they’re entitled to use a special basis of taxation which we know as the remittance basis.  And this effectively means that although UK income and capital gains are taxable in the UK, non-UK income and gains are not taxable unless and until those funds are bought into the UK or used in the UK.  The other thing which I should comment on is a concept of clean capital.  So, assets which do not represent or derive from non-UK income and gains, this is what we call the so-called clean capital, can be brought into the UK without triggering a UK income tax or capital gains tax charge.  There are a number of other things that Jamie and Alex should consider and I’ll just give you the headline points.  The first thing is how investment should be selected and managed.  Some investments are just not suitable for UK-resident non-domiciled individuals.  They should also consider whether their investment-holding entities or structures are suitable.  They should consider whether there’s scope to rebase their assets prior to the commencement of their UK residence for capital gains tax purposes.  And finally they should consider whether any changes need to be made to their employment arrangements. 

Stephanie Pierce

Jamie purchases a property in London for £2 million.  It is purchased in Jamie’s sole name with the intention that Jamie and Alex will live their together when they move to the UK.  Alex is not contributing to the purchase price or mortgage payments but will contribute to general living costs.  Are there any family issues to consider with this arrangement?

James Rees

The starting point really is to consider the position from two different scenarios; whether the parties are married or unmarried.  The first thing to just flag and to scream from the rafters is that there is no such thing as common-law marriage in this country.  It’s probably the most widely-held misconception out there.  If the parties are unmarried and the property is bought in one party’s sole name, they will be treated as the legal and beneficial owner unless the non-owner can evidence alternative financial contribution and the intention behind it.  If the parties are married, it’s slightly simpler because the Family Court has the power to override legal ownership.  So, irrespective of who bought the property in the first instance, the ourt has the power to vary ownership and transfer a part or all of the property to the non-owning party.  So that also needs to be a factor when you decide to marry. 

Stephanie Pierce

Stuart are there any other tax issues that Jamie should consider on the purchase?

Stuart Rees

When it comes to purchasing personal homes for UK-resident non-doms, there isn’t much flexibility.  So, in some cases the best approach is for the house to be purchased by the individual.  Consideration should definitely be given by Jamie to taking out some bank borrowing for the purchase because that can be secured by a mortgage on the property and the bank debt should then be deductible from the value of the house for inheritance tax purposes.  The other thing that he needs to take into account is stamp duty land tax.  Stamp duty land tax applies to non-residents in the same way that it applies to UK residents.  However, from the 1st of April of this year, stamp duty for overseas buyers is going to include a 2% surcharge. 

Stephanie Pierce

So, we move on further in our scenario.  Two years later, Jamie decides that he wants to transfer half of the property to Alex.  By this time, the property is now worth £3 million.  Are there any tax or succession planning considerations for this transfer from Jamie to Alex?

Stuart Rees

Jamie can give a share of the property to Alex even if it’s standing at a gain because there’ll be no capital gains tax payable because of principal private residence relief.  It’s a full exemption from capital gains.  As long as he spends at least 90 days in the home for each tax year that he owns it, it again will qualify for the relief.  The second tax is inheritance tax and a share of the property gifted by Jamie to Alex would not be immediately chargeable to any inheritance tax and it would constitute what we call a potentially exempt transfer and what that means is, if Jamie survives a period of seven years after he makes the gift, the asset is no longer treated as his in value terms and it effectively passes out of his estate.  The third and final tax I mentioned is stamp duty land tax.  We need to consider whether or not there’s a mortgage on the property because it might be Jamie’s idea as I mentioned. to try to mitigate his inheritance tax exposure by taking a mortgage.  And if there is at the time that he transfers to Alex and Alex takes on part responsibility for that mortgage, there may be a charge to stamp duty land tax. 

Stephanie Pierce

So, we move on in our scenario to marriage.  Jamie and Alex decide that they want to make a lasting commitment.  They aren’t sure whether to get married or to enter into a civil partnership.  They are also flexible as to whether to get married or enter into a civil partnership in the UK or abroad.  Is there any difference between marriage or civil partnership?  And as a follow-up question, is there any difference between getting married in the UK versus getting married abroad?

James Rees

There is very little to distinguish between civil partnerships and marriage.  You need to make absolutely sure whatever you’re entering into is going to be legally binding.  The other factor is obviously if you are getting… if you are from an international background and you’re getting married abroad and you’re getting a prenup, you also need to consider other jurisdictions that may have an interest in your marriage i.e. you could get divorced there.  So, you also need to make sure that the prenup takes into account the other jurisdictions where you have a link to. 

Stephanie Pierce

So, we move on in the life of Jamie and Alex, who do get married/have a civil partnership.  They go on to have a child but sadly after two years of marriage, they make the decision to separate and divorce.  Jamie moves out of the family home in June and agrees that Alex can keep the family home in London.  By this time, they have lived in the UK for four years.  Turning first to James, can they agree this and are there any issues with this?

James Rees

So, let’s deal with the children issues first.  The English Family Court will not intervene in children issues unless the parties require it and make an application for it to become involved.  Turning to the finances, obviously the parties have now been here four years so we would say that the English Court clearly has jurisdiction to deal with the breakdown of this relationship.  Absence of prenuptial agreement which says, which says otherwise, the starting point is that each party is entitled to 50% of the wealth built up during the marriage.  If that is not enough to allow a party to re-house and maintain a comfortable lifestyle, the non-matrimonial assets such as pre-acquired wealth and inheritance can be factored in. 

Stephanie Pierce

So, through all of this we have to remember that Jamie and Alex are of course in the UK on the visas they acquired right at the beginning of this scenario.  So, Fran are there any immigration issues on Jamie and Alex’s separation and divorce?

Fran Rance

Whoever is the dependent for visa purposes will need to apply for a new visa and they should also inform the Home Office when the marriage ceases to subsist.  So, the options that are available to the dependent would very much depend on what’s going on at their life, in their life at that moment and their particular circumstances. 

Stephanie Pierce

So, that is the end of our scenario but of course we turn now to Q&A.  The first one says that since 2013, there is a statutory residence test.  What was the rule before this?  And I think this is a question for Stuart. 

Stuart Adams

It was a lot more difficult to try to determine one’s residence before 2013 because principally the mode of determining it was through case law and through sort of HMRC guidance that was issued about the circumstances in which they would look at and which would give an indication towards residence.  So, there are many fights that have taken place.  So it is one of the principal reasons why we ended up with the statutory residence test because we just needed to have a very clear set of guidance, set of rules, that you could apply to a situation and come away with a very clear determination of whether or not you were resident. 

Stephanie Pierce

If the couple in the scenario we looked at decide to put a Will in place under UK law, would they normally carve out overseas assets e.g.  property in Germany, or include them in their Will?

Stuart Adams

There’s no guarantee that if you put in place a will in the UK, drawn in accordance with English law, in English form, that it would be a form that would be acceptable in a foreign jurisdiction.  So, sometimes it is possible to put in place a UK Will which covers worldwide assets but you have to take care to make sure that you’ve liaised with relevant advisors in the other jurisdictions. 

Stephanie Pierce

You mentioned that unmarried partners should have lived together for two years before they apply.  Are there any exceptions to this?

Fran Rance

If you can show that say, you’ve been spending short periods of time apart and that’s for a good reason.  So, an unavoidable work reason because of the nature of your career or perhaps you were taking care of an ill relative or it might be for religious or cultural reasons for example.  Then those factors might be taken into consideration by the Home Office. 

Stephanie Pierce

You have mentioned about the English Court making an order regarding the party’s finances on divorce, can that order deal with assets held abroad and if so, can it be enforced in another country if that is where the asset is located?

James Rees

The English Court will look at the party’s assets worldwide.  The problem obviously any party faces in terms of enforcing an order is that an English Court order is just a sheet of paper.  While it’s certainly enforceable within the United Kingdom, other countries don’t automatically recognise English court orders. 

Stephanie Pierce

Is the 2% extra SDLT surcharge in addition to existing SDLT rates?  So, is it in addition to the 3% additional property surcharge?

Stuart Adams

Yep unfortunately, it is so a non-resident for example who’s purchasing a property in the UK, typically they always or often fall into the additional rate anyway because they have a property or properties overseas already.  So, when they purchase they expect to pay the additional three percentage points for an additional property on each of the bands and unfortunately yes this new 2% is on top of that.  So, it would mean 5% on top of each of the bands. 

Stephanie Pierce

So, thank you to the audience for joining us today and to our speakers for their insight and practical advice.  If you have any follow-up questions please feel free to contact me or any of the panellists individually.  Goodbye. 

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit mishcon.com. 

How can we help you?
Help

How can we help you?

Subscribe: I'd like to keep in touch

If your enquiry is urgent please call +44 20 3321 7000

COVID-19 Enquiry

I'm a client

I'm looking for advice

Something else