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HMRC internal manual

Capital Gains Manual

HM Revenue & Customs
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Transfer of assets: between husband and wife or between civil partners: separation, divorce or dissolution: Court Orders

Where the parties to a divorce or dissolution are unable to reach an agreement between themselves, they are able to apply to the Court to resolve the issues. The Court will decide on the division of the assets and make an order giving effect to its decision.

Where the parties are able to agree on the division of the assets of the marriage or civil partnership they may still approach the Court for an order to give effect to any such agreement. The court order in these cases is called a consent order.

It is sometimes suggested that the agreement between the parties, which precedes a consent order, is a binding contract and so the date of any such agreement is the date of disposal of the assets. However you should not accept this view; it is a view that was rejected by the Privy Council in the non-tax case of de Lasala v de Lasala 1980 AC546 in which Lord Diplock stated,

`Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the Court once they have been made the subject of the Court Order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the Court Order.’

This principle has subsequently been applied in tax cases, for example in Aspden v Hildesley (55TC609) and in Harvey v Sivyer (58TC569). In the latter case, Nourse J commented that it is

`now well established that the legal effect of the provisions embodied in this kind of consent order is derived from the order itself and does not depend on any anterior agreement between the parties.’