Commentary on Sections Overview Overview Section 46: Marriages and civil partnerships on or after 5 December 2005
179.This section applies if a marriage takes place or a civil partnership is formed on or after 5 December 2005, or if a married couple elect for the new rules to apply. It is based on sections 256 and 257AB of ICTA.
180.Where a same-sex couple registered their relationship in an overseas jurisdiction listed in Schedule 20 to the Civil Partnership Act 2004 before 5 December 2005 they are treated under that Act as having formed a civil partnership on 5 December 2005. According, in those circumstances a claim may be made under this section.
181.Subsection (1) provides that on a valid claim a tax reduction is due to the individual who makes the claim. As is made clear in subsection (2), that individual is the spouse or civil partner with the higher income.
182.Subsection (2) sets out the conditions for the relief under this section. The “higher income” test operates by reference to net income. If, exceptionally, both parties have the same income, then they jointly nominate either party as the claimant.
183.Subsection (4) provides that the allowance is reduced if the claimant’s adjusted net income exceeds a threshold. The calculation of adjusted net income for this purpose is similar to, but slightly more complicated than, that under section 36(2) because it takes into account the fact that the individual will have already suffered a reduction in the personal allowance if the individual is aged 65 or over.