Spouse or civil partner exemption: definition of spouse and civil partner
The Inheritance Tax legislation does not define ‘spouse’ or ‘civil partner’ so the definitions come from general law. Consequently, the exemption applies to transfers between people who are lawfully married to each other at the time of the transfer and to transfers between people who are registered as civil partners of each other at the time of the transfer.
- people who are legally married but separated
- parties to a valid polygamous marriage. The marriage confers the IHTA84/S18 exemption on all transfers to all the spouses of the transferor or deceased who qualify under IHTA84/S18. Where the IHTA84/S18 (2) limit applies because of foreign domicile of those spouses (IHTM11033), the total exemption (including any similar lifetime exemptions) may not exceed the IHTA84/S18 (2) limit of £55,000 when the date of transfer was before 6 April 2013, and the applicable nil-rate band when the date of transfer was on or after this date.
The following are not spouses
- people who are living together but not lawfully married, however long the relationship may have lasted (in England, Wales and Northern Ireland)
- In Scotland the one form of irregular marriage that has been recognised by Scots law is that by cohabitation with habit and repute. This arises where a man and woman cohabit together as husband and wife and behave towards each other as such for a considerable length of time, so it is generally believed by the society and neighbourhood in which they live, and among their friends and relatives that they are married. They are then presumed to be married, although it is impossible to state precisely the place and a time when they exchanged the consent which is essential for marriage. Marriage by cohabitation with habit and repute was abolished by The Family Law (Scotland) Act 2006. It will remain an issue for the Courts for some time to come, however, since claims can still be admitted if based on a period of cohabitation that occurred before the commencement of the Act. If it is claimed that this common law style of marriage entitles the parties to the exemption under IHTA84/S18 (1) in either a death or lifetime situation you should refer the file to Technical.
- parties to a bigamous marriage
- people who were formerly lawfully married but divorced before the date of death/transfer
Civil partners are same-sex couples who have entered into a contractual partnership formally recognised by law under the Civil Partnership Act 2004, which came into effect on 5 December 2005. In addition to civil partnerships formed in the UK, the Act recognises some overseas relationships, in particular the specified relationships listed in its own Schedule 20. It should be remembered that under Section 216 of the Civil Partnership Act 2004 it is essential that both the partners were of the same sex when the partnership was formed. A relationship such as the French pacte civil de solidarité is open to partners of opposite sexes as well as partners of the same sex - in practice it has come to be seen by opposite-sex couples as an optional prelude to marriage - but the exemption available for transfers between civil partners is available only where the overseas civil partnership is formed by a same-sex couple. The same applies to the exemption for gifts on the registration of a civil partnership (IHTM14191).
The term ‘civil partners’ will not apply to those individuals whose civil partnership had been dissolved by a court order before the date of death/transfer
Two people who are either married or in a civil partnership will qualify for the exemption; those who are not will not. So married couples who annul their marriage and immediately enter into a civil partnership, or couples who dissolve their civil partnership, and immediately enter into marriage, so that one of the partners can obtain gender recognition, will continue to qualify for this exemption in their new relationship. But in the event that one of the couple dies in between ending one relationship and entering the new relationship they will not qualify for the exemption as, at that point, as they were neither married nor in a civil partnership.
Any transfer between spouses made on the breakdown of a marriage is covered by the exemption if it was made before the dissolution of the marriage by the decree absolute. You should note that dispositions between or for the benefit of spouses, or former spouses, on the breakdown of a marriage may not be transfers of value (IHTM04151) in view of IHTA84/S10 (IHTM04165) or IHTA84/S11 (1) (a) (IHTM04173).
Where the dispositions are made following a Court Order under the Matrimonial Causes Act 1973, the decision in Haines v Hill  EWCA Civ 1284 at para 35 confirms that the applicant spouse’s right to apply for a property order is consideration equal to the value of the money or property that is to be transferred under the Court Order. As a result there is no loss to the respondent spouse’s estate in the first place and there is no need to rely on any exemption or other exclusion to prevent a transfer of value arising. Consequently, a settlement arising under a Court Order which gives the applicant spouse an interest in possession will be a relevant property trust and the spouse’s interest in possession will not form part of their estate in view of IHTA84/S49(1A) and IHTA/S5(1B).