Q&As

Where spouses separate and one spouse remains in the former family home, but is unable to take over the mortgage so that the other spouse must remain on both the mortgage and the title to the property, will the non-occupying spouse have to pay the higher rate of stamp duty land tax if they purchase a new property to be their main dwelling?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 23/03/2021

The following Family Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • Where spouses separate and one spouse remains in the former family home, but is unable to take over the mortgage so that the other spouse must remain on both the mortgage and the title to the property, will the non-occupying spouse have to pay the higher rate of stamp duty land tax if they purchase a new property to be their main dwelling?

Where married parties separate and the court divides up the matrimonial assets by the application of its powers under the Matrimonial Causes Act 1973 (MCA 1973), there may be insufficient assets to enable both parties to rehouse. Although the court will start from the position that the matrimonial assets should be divided equally between the parties (see Miller v Miller; McFarlane v McFarlane), the court may depart from that position and such departure will often be required to meet the needs of one party who may be in a weaker financial position or, more usually, who is the primary carer of the children. The welfare of minor children of the family is the first consideration of the court.

In such circumstances, it may be necessary to preserve the former matrim

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