Buying a house by ex-spouse through divorce or divorce

Real estate transfers between spouses at the end of the marriage: civil and tax aspects.

At the time of separation or divorce, the spouses are obliged to share among themselves the assets that previously belonged to both. It always happens in the case of a married couple in an asset community, but it could also be the case of a couple in an asset split in the presence of common assets.

There can be two solutions in the field: the sale of the property to third parties with a later distribution of income or the assignment of the property to one of the two spouses by settling half of the monetary value to the other. This second case, however, raises a number of legal and tax issues that need to be resolved in advance. In case that purchase of the house by the ex-spouse through separation or divorce for example, there is the problem of the permanence of the concessions for the first house used at the time of the initial sale, the possible inclusion of the deed in registration, mortgage and land registration taxes and, most importantly, the possibility of execution or sale at the time of separation or divorce. But let’s move on.

Transfer home to ex-husband: when?

As expected, when the property belongs to both spouses, in the separation or divorce contracts both can agree that the ownership of the entire asset is transferred only to one of the two who will liquidate the relevant share to the other by paying it at the purchase price. .

An agreement can be reached before the judge which with the penalty of separation or divorce will formalize the transfer of ownership (thus replacing the notary).

Also according to the United Cancellation Divisions [1]with the penalty ratifying the separation or divorce agreement it is possible to transfer real estate from one spouse to the other or to the children, without necessarily going to the notary.

But beware: if the transfer of the property is part of a wider agreement, which may be aimed at regulating the financial relations between the parties (such as those for maintenance), then it is good to postpone the moment of divorce. In fact, the agreements made during the separation have no value in the next phase of the divorce. Consider the case of the husband donating his share of the co-ownership house to the ex-wife in exchange for the latter’s waiver of alimony: if this agreement is signed with the divorce, in the next phase of the divorce the wife could repeat her steps and claim the divorce allowance.

Can the house be transferred in case of separation or divorce before the Municipality?

The sale agreement can not be made in the context of separation or divorce before the Municipality. In fact, this procedure does not allow agreements for the transfer of assets.

Is a notary necessary in case of assisted trading?

On the other hand, it is possible to agree on the transfer of the share to the ex-spouse with his contract assisted trading signed before the corresponding lawyers of the parties. Next, the agreement should be finalized in a act (as opposed to what happens instead with the penalty of separation or divorce that does not require subsequent transmission to the notary).

Will the first home bonus be lost if the property is sold to the ex-spouse?

Generally, anyone who sells a home 5 years before the sale loses the first home bonus, unless, within the next year, they buy another home that is also intended as a first home. However, this rule does not apply if the house is transferred to the ex-spouse under a divorce or divorce agreement. [2]. This applies to both the sale and the donation.

The question then arises whether the spouse, owner or co-owner of the “benefited” property loses the tax advantage if, precisely because of the separation from his wife, he is forced to leave and change of residence. The answer in this case is no: the bonus remains despite the transfer.

The Revenue Service has also defended this dissertation [3] explicitly excluding from the forfeiture of the concessions on the first residence the sale of the property under separation or divorce agreements. In this case, it is therefore possible, for example, for the spouse to give the first home to the ex-spouse (or even to the children or to third parties, in this case sharing the income with the ex) without losing tax relief. .

Can the first home bonus be taken if the marital home has been assigned to the ex-spouse?

According to the Supreme Court [4]the husband was forced to transfer the right of residence in the first house to his ex-wife, because the latter had been entrusted by the judge with the children, may buy a second home with tax breakdespite retaining ownership (or a share of ownership) in the previous one?

Do you pay taxes on the sale of the house to the ex-spouse?

The sale of this house or share of it to the ex-spouse is not subject to tax. According to the Supreme Court, real estate transfers made during divorce or divorce are intended to regulate property relations between spouses and, therefore, the deed of real estate enjoys the tax deductions provided by law. [5]. As clarified by the Revenue Agency itself [6] the transfer deed will be exempt from registration taxtax mortgagetax cadastral and File Tax.

Do you pay taxes on the mortgage to transfer the house to your ex-spouse?

Even the loan foragreement with the ex-spouse is tax-free, as the Revenue Agency recently clarified [7]. In particular, it benefits from the whole exemption from taxes and duties the loan provided to finance the agreement under which the ex-spouses agree on the terms of their separation or divorce. For example, the agreement by which one of the spouses buys the co-ownership share of the apartment that is already used as a family home owned by the other spouse.

In particular, an exemption from “stamp duty, registration tax and any other tax” is provided for “all acts, documents and provisions concerning the process of dissolution of the marriage or termination of the civil consequences of the marriage”. regulatory expression that the Constitutional Court [8] It then extended to the process of personal separation between spouses.

Nowadays, therefore, it can reasonably be assumed that any paternal arrangement agreed in the so-called “marriage crisis contracts” should benefit from the exception provided by Article 19 of Law 74/1987.


Note

[1] Cass. SU sent. n. 21761/21 of 29 July 2021.

[2] Cass. ορ. n. 31603 of 12.6.2018.

[3] Revenue Agency, resolution no. 80 / E / 2019.

[4] Cass. ορ. n. 19989/2018. Ctr Lazio, sent. n. 162/21.

[5] Article 10, L. 6 March 1987, n. 74

[6] Revenue Circular Ag. 18 / E of 29 May 2013.

[7] St. Revenue response to decision 260/2022.

[8] G. Const. Apost. n. 154/1999.

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