To Sever or not to Sever: Joint Ownership of Property During Divorce
Coming to a decision to divorce or end a civil partnership is a stressful and difficult time. Not only do you need to deal with the emotional fallout from a relationship breakdown, but a number of practical issues will raise their head. One issue which can throw up the greatest difficulties is what will happen to any jointly owned property both during and after the divorce. If you are divorcing, here are some issues to think about before making any decisions.
Joint ownership of property – Types of ownership
A property can be held in different ways; for example by one of you or jointly either as ‘joint tenants’ or ‘tenants in common’.
If you and your ex-partner own a property together, you will first need to establish what type of ownership you have before you can decide on next steps. The main difference between being joint tenants and tenants in common is what happens if one of the parties dies.
Joint Tenants
This is the most common form of ownership for married couples. If you and your ex-partner took out a mortgage together, it is likely that you are joint tenants; however you will need to check the title deeds or the information provided by your conveyancer when you first bought the property. If you are in any doubt, contact your local Land Registry Offices. If you are joint tenants and one party dies, the other will automatically inherit all of the property.
If you are in the process of divorcing you may not want any property owned as joint tenants to pass to your ex-partner in the event of your death. For example, you might want your share to go to your children. If this is the case, you can take action to change the tenancy to become tenants in common. This is called ‘severing’ a joint tenancy.
Tenants in Common
If you are tenants in common, you each own a specified share in the property. This could be split 50:50 or in some other ratio and you can leave your share to someone else in your will. It is important to note that if there is no will and you are married or in a civil partnership, your share would pass to the other joint owner. It is therefore important to ensure you make a will specifying who you would like your share to pass to in the event of your death.
Severing a Joint Tenancy
To do this, you will need to issue a notice of severance to the other party. The Land Registry also needs to be notified. It is best to seek advice if you would like to achieve this.
You should also be aware when severing a joint tenancy that if your ex-partner were to die prior to the end of a divorce process, their share of the property would no longer automatically pass to you which for obvious reasons in some circumstances can have its advantages and equally disadvantages.
