will be lending matrimonial assets to my new company as a directors loan in order to buy a property
The property is the important bit, since we're now in the province of equity.
As your spouse has an equitable claim in the matrimonial assets (let's call it cash), that claim will follow the cash into whatever its converted into. So if you slyly buy a yacht while your spouse is away, in equity they own half the yacht, even if you buy it in your own name.
You'd think that the fact that this is a
loan to the
company, and not a purchase outright by you personally, would introduce a cut-out. But no: thanks to the
Quistclose case, a trust attaches to a loan made for a property purchase, as well. So spouse's equitable interest jumps from cash in your possession, to the loan in the company's hands, to the bricks and mortar bought with the loan.
A deed of gift ensures spouse's equitable interest is extinguished. If the company were "equity's darling" - taking the loan
bona fide and without notice of spouse's interest in the cash - there'd be no need for one. But the company is imputed with its directors' knowledge of the situation. As you know the matrimonial finances in detail, so does the company.
I don't know the solicitor's reasons, but this is the sort of thing any creditor would be jumpy about. If there's a commercial mortgage proposed for some of the purchase price, there's no way they'd wear it - it would just gunge up their enforcement, if that were needed some day.
And your solicitor, knowing what they now know, would have to disclose it all to the mortgagee: they have fiduciary duties to the bank as well as to you.
