SDLT question

[Arborbridge]

Asking for a friend... no actually my daughter. She and her husband have a question relating to selling there current house while he is working abroad. She has asked two different solicitors and received two different answers. She has also looked at the various HMRC notes but find it ambiguous.

Knowing how good the hive mind is here, I said I would canvas some addition views. The problem is as set out below:-

A married couple buy their one and only home in 2016. In 2021, the husband goes to Dubai to start a new job and becomes non-resident, while the wife and kids remain at home.
Husband has been gone three years, returning for approximately 8 weeks per year, each year. Husband lives in a hotel.
The family now need to move to a different town in England, the husband will remain in Dubai for a bit longer, with intention to move home again at some point post-move.
Will the purchase be subject to the additional rate of SDLT due to the husband being non-resident, or does the fact that the wife is still resident, that they jointly own the house, & that they own no other property anywhere mean that they pay the 'normal' SDLT rate?

Any input would be appreciated.


Arb.

[genou]

If you’re married or in a civil partnership
If you’re buying the property together, then as long as you are not separated and neither of you is acting as a trustee of a settlement, if one of you is UK resident in relation to the transaction then you are both treated as UK resident in relation to the transaction.


https://www.gov.uk/guidance/rates-of-st ... applies-to

[monabri]

https://www.gov.uk/guidance/rates-of-st ... -residents

"Buying with someone else"
"The rules apply to each person, natural and non-natural, who is buying the property. If any of you individually are non-UK resident in relation to the transaction, then all buyers are treated as non-UK resident in relation to the transaction."

Hence an increased SDLT rate is due would be my interpretation of .Gov guidance....but I'm not a solicitor and I'm surprised that you got 2 different answers.

[genou]

https://www.gov.uk/guidance/rates-of-stamp-duty-land-tax-for-non-uk-residents

"Hence an increased SDLT rate is due would be my interpretation of .Gov guidance....but I'm not a solicitor and I'm surprised that you got 2 different answers.

We are quoting from the same guidance. Do you not consider that their married status avoids the charge?

[monabri]

Interesting!

[monabri]

https://www.gov.uk/guidance/rates-of-stamp-duty-land-tax-for-non-uk-residents

"Hence an increased SDLT rate is due would be my interpretation of .Gov guidance....but I'm not a solicitor and I'm surprised that you got 2 different answers.

We are quoting from the same guidance. Do you not consider that their married status avoids the charge?

OK, I conceed.....it does indeed say that if you are married or in a CP and one of you is resident then the other is classified as resident too! Thus the extra charge would not apply.

[Mike4]

We are quoting from the same guidance. Do you not consider that their married status avoids the charge?

OK, I conceed.....it does indeed say that if you are married or in a CP and one of you is resident then the other is classified as resident too! Thus the extra charge would not apply.

But is that not subject to this bit quoted by genou? (In post 2.)

"as long as you are not separated"


Is 'separated' legally defined? Might one spouse living abroad for the bulk of each year fit the definition?

[Lootman]

OK, I conceed.....it does indeed say that if you are married or in a CP and one of you is resident then the other is classified as resident too! Thus the extra charge would not apply.

But is that not subject to this bit quoted by genou? (In post 2.)

"as long as you are not separated"

Is 'separated' legally defined? Might one spouse living abroad for the bulk of each year fit the definition?

"Separated" in that sense refers to the marriage or partnership having broken down. It is a necessary pre-condition to get a divorce.

Physical separation is different. In fact there is nothing I am aware of that states that a married couple have to share the same home, or nation.

Incidentally, when it comes to these "extra" stamp duty supplements, like for non-residents and second homes, you have to pay them even if the purchase price is less than £250,000 - the normal starting point for stamp duty. The extra duty starts at £40,000, I believe, and so is effectively for all UK properties.

[monabri]

But is that not subject to this bit quoted by genou? (In post 2.)

"as long as you are not separated"

Is 'separated' legally defined? Might one spouse living abroad for the bulk of each year fit the definition?

"Separated" in that sense refers to the marriage or partnership having broken down. It is a necessary pre-condition to get a divorce.

Physical separation is different. In fact there is nothing I am aware of that states that a married couple have to share the same home, or nation.

Incidentally, when it comes to these "extra" stamp duty supplements, like for non-residents and second homes, you have to pay them even if the purchase price is less than £250,000 - the normal starting point for stamp duty. The extra duty starts at £40,000, I believe, and so is effectively for all UK properties.

Folk can be physically "separated" if one of them were to be imprisoned for a crime.... My next door neighbour spent many years not living with his wife - she lived about half a mile away!

[Lootman]

"Separated" in that sense refers to the marriage or partnership having broken down. It is a necessary pre-condition to get a divorce.

Physical separation is different. In fact there is nothing I am aware of that states that a married couple have to share the same home, or nation.

Incidentally, when it comes to these "extra" stamp duty supplements, like for non-residents and second homes, but you have to pay them even if the purchase price is less than £250,000 - the normal starting point for stamp duty. The extra duty starts at £40,000, I believe, and so is effectively for all UK properties.

Folk can be physically "separated" if one of them were to be imprisoned for a crime.... My next door neighbour spent many years not living with his wife - she lived about half a mile away!

Tim Burton and Helena Bonham-Carter are married but famously each has their own home or homes.

I think it might be a little different for civil partnerships where co-habitation is an initial requirement, I had heard.

[Arborbridge]

This seems unambiguous - or does it?

Found this extract in HMRC SDLT non-resident surcharge advice booklet

If you’re married or in a civil partnership

If you’re buying the property together, then as long as you are not separated and neither of you is acting as a trustee of a settlement, if one of you is UK resident in relation to the transaction then you are both treated as UK resident in relation to the transaction.
Example

Elijah and Hayley are married and live together in the USA. They jointly purchase a freehold residential property in Northern Ireland on 1 June 2025 for £950,000. Neither is acting as a trustee of a settlement.

Between 2 June 2024 and 1 June 2025, Elijah spent 183 days in the UK and Hayley spent 100 days.

Elijah is UK resident in relation to the transaction. Therefore, Hayley is also treated as UK resident in relation to the transaction, even though she spent less than 183 days in the UK during the 12 months prior to the purchase.

That does seem like pretty solid evidence that both would be treated as UK residents.

Arb.