Situation 08
Transfer between spouses
A transfer between spouses or civil partners is not automatically outside the charge. Whether it is depends on what is given in return, including debt.
The short answer
The common assumption is that transfers within a marriage are tax free. For stamp duty that is only true where there is no chargeable consideration, and a mortgage is chargeable consideration.
Where this usually goes wrong
These are the patterns we see most often. Each one is a situation where the obvious answer and the correct answer are different.
The mortgage nobody counted
Taking on a share of an existing mortgage is consideration, and it is the single most common trigger here.
Separation and divorce
The position on a transfer under a court order or a formal agreement is not the same as an ordinary transfer.
Transfers as part of a wider plan
Where the transfer sits alongside a purchase or a wider restructuring, the analysis changes.
Effect on the higher rates test
A transfer can change the position of both parties for a later transaction.
No return filed at all
Where a charge does arise, a return may be required even if the amount is small.
The facts that decide it
If you want to know where you stand before you speak to anyone, these are the questions we will ask. Having the answers ready is most of the work.
- 01What interest is being transferred, and what proportion?The nature and size of the interest moving is the starting fact for everything else.
- 02Is there a mortgage, and is any part of it being assumed?What happens to existing borrowing is the point we look at first.
- 03Is any other consideration being given?Consideration is not confined to money, so everything passing between you is relevant.
- 04Are the parties married or in a civil partnership at the relevant date?Status at the date of the transfer is a question of fact and is evidenced as one.
- 05Is the transfer under a court order or formal separation agreement?A transfer made under an order or a formal agreement is analysed on its own documents.
- 06Does either party hold other property interests?Interests held elsewhere can affect how a later transaction is treated.
- 07Is a purchase happening alongside this?A transfer that forms part of a wider arrangement is not looked at in isolation.
- 08Has a return been filed?What has already been submitted determines what can still be done.
What we would want to see
The analysis is only as good as the documents behind it. For this situation, that normally means:
- Draft or executed transfer deed and title register
- Mortgage statement and details of any debt to be assumed
- Completion statement, where available
- Details of every property interest held
- Evidence of any disposal and its date
- Details of all purchasers and their positions
- Any existing SDLT return and UTRN
- Correspondence with the conveyancer on the point
Questions we get on this
We are married. Is a transfer between us not outside the charge?
Not automatically. What decides it is whether anything is given in return for the interest transferred, and what counts as being given in return is wider than money. That is why we start with the borrowing on the property.
There is a mortgage on the property. Does that count?
It is the point we look at first. Where a share of existing borrowing moves along with the interest in the property, that has to be brought into the analysis rather than left out of it.
We are separating. Is that treated differently?
It can be. A transfer made under a court order or a formal agreement is not analysed in the same way as an ordinary transfer between spouses, so we would want to see the order or the agreement itself rather than a summary of it.
Will you just tell me what I want to hear?
No. Our fee is fixed and does not depend on the outcome, which means we have no interest in finding a saving that is not there. If the original return was right, we will tell you that in writing, and you will have a reasoned position on file if it is ever looked at.
This page is general information only and is not advice. It applies to transactions in England and Northern Ireland. Reviewed 16 August 2026.