When a decree of divorce or judicial separation is granted, the court may also grant a Property Adjustment Order.
This is a court order which relates to the assets of the spouses, such as the family home and any investment* properties.
*See also our Guide to Pension Adjustment Orders
It is important that you get legal advice from a solicitor who has expertise in this field of law.
Book a Consultation with Family Law Solicitor Michael Burns on +353-1-567 7343
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Implementing the Property Adjustment Order: The Conveyancing Phase
A property adjustment order is a court order which may order the transfer of property (such as the family home) from one spouse to the other.
After this order is granted, a solicitor must carry out conveyancing to give effect to the order. This may involve obtaining the lender’s consent if there is a mortgage on the property, drafting a formal Deed of Transfer, and dealing with Tailte Éireann.
Dealing with Mortgages: Bank Consent and Releasing a Spouse
Where there is a mortgage on the property, the court order does not compel a spouse’s removal from the mortgage. The lender must agree to any such removal. For this to occur, the bank must be satisfied that the remaining spouse can meet the mortgage repayments alone.
If the bank consents, the spouse will be removed from the mortgage and replaced with the remaining spouse.
If the bank does not consent, the parties may need to explore other options such as refinancing or selling the property.
Stamp Duty Exemptions for Divorcing Couples (Section 97)
Section 97 of the Stamp Duties Consolidation Act, 1999, provides for a stamp duty exemption for spouses who transfer assets under a divorce or judicial separation. Once the transfer is court ordered, there is no stamp duty when property is transferred from one spouse to the other.
The Transfer Process: From Court Order to Land Registry (Tailte Éireann)
Once the Deed of Transfer has been prepared by your solicitor, it must be lodged with Tailte Éireann. Ownership does not formally change over until the transfer has been recorded on the Land Registry. Once this has been updated, the receiving spouse becomes the official registered owner of the property.
For more infomation – visit our Conveyancing section here on our website
Tax Implications for Investment Properties vs The Family Home
While there is an exemption (detailed above) from stamp duty where the transfer of property is court ordered from one spouse to the other following a decree of divorce, judicial separation, or dissolution, capital gains tax may arise depending on the circumstances.
Principal Private Residence Relief provides for the exemption from Capital Gains Tax (CGT) on the profit from the sale of your main home (i.e. the family home). This exemption applies only if, for the entire period of ownership, you lived in the property as your main residence and you used all the property as your home.
If you have not always lived in the property as your main residence, you can only claim for the time you lived in the property.
If only part of your property was used as a home (and the rest for a business, for example), you can only claim for the part of the house you used as your home.
Where spouses own a second property, that property will not qualify for Principal Private Residence Relief, and CGT may arise. CGT is charged on the gain or profit rather than the total value.
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