Unlike
@T McGibney and
@Greenbook I have no professional experience in this area. However, as a mere taxpayer, I have always understood that anti-avoidance provisions are engaged when a transaction has no underlying purpose apart from tax avoidance. Secondly, it is a piece of heavy artillery that is aimed at large value (multi-million) transactions, often between artificial corporate or partnership structures that, objectively, make no sense, and are often aggressively marketed by (some) financial advisers.
In no way does a transaction between spouses come under this heading. It can be more than adequately justified as being "in consideration of natural love and affection" or an equitable sharing of family resources that recognizes the value of a spouses work in the home - bonus marks here for invoking a constitutional argument!
Secondly it's small beer. Sure, an aggressive tax inspector or official might
threaten it's use - handy to scare people into supine submission - but I don't think they'd put it to judicial test (risking it's utility in much higher value cases) for a relative pittance.
And finally, if an interspousal transaction like this could be caught up in anti-avoidance provisions, then virtually any transaction could be. Very generous pension provisions for proprietary directors to name just one.
