IHTM11032 - Spouse or civil partner exemption: definition of spouse and civil partner

The IHT legislation does not define ‘spouse’ or 'civil partner' so the general law applies. Consequently, the exemption applies to transfers between persons who are lawfully married to each other at the time of the transfer and to transfers between persons who are registered as civil partners of each other at the time of the transfer.

Spouses include

• persons who are validly married but separated
• parties to a valid polygamous marriage. The marriage confers the IHTA84/S18 exemption on all the spouses’ benefits which qualify under IHTA84/S18. Where the IHTA84/S18 (2) limit applies because of the spouses’ foreign domicile ( IHTM11033), the total exemption (including any similar lifetime exemptions) may not exceed the IHTA84/S18 (2) limit.

The following are not spouses

• persons who are living together but not lawfully married, however long the relationship may have lasted (England, Wales and Northern Ireland)
• In Scotland the only form of irregular marriage now recognised by Scots law is that by cohabitation with habit and repute. Basically this arises where a man and woman cohabit together at bed and board as husband and wife and behave towards each other as such for a considerable length of time so as to produce a general belief in the society and neighbourhood in which they live, and among their friends and relatives that they are married. They are then presumed to be so in fact although it is impossible to state with any precision a place and a time when they exchanged the consent which is essential for marriage. If it is claimed that this common law style of marriage entitles the parties to the exemption under IHTA84/S.18(1) in either a death or lifetime situation you should refer the file to TG.

(This text has been withheld because of exemptions in the Freedom of Information Act 2000)

• parties to a bigamous marriage
• persons who were formerly lawfully married but divorced before the date of death/transfer

Civil partners comprise same-sex couples in the UK 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.

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

Any transfer between spouses made on the breakdown of a marriage is covered by the exemption if made in advance of 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 transfer of value ( IHTM04151) in view of sIHTA84/S10 or 11(1)(a).)