How does severing a joint tenancy affect property ownership in divorce?
When clients come to us for an Early Evaluation, a common concern we hear is: ‘I’ve received a letter saying my joint tenancy has been severed; what does this mean?’
Usually, they’ve just received a Land Registry letter informing them that they are now a Tenant in Common instead of a Joint Tenant. It’s understandable to feel unsettled; after all, this is your home, and you’ve always owned it jointly.
But before you panic, let’s break it down for you…
The Good News: You’re Still a Joint Owner
Yes, your ownership status has changed, but you still own the property just as you did before. You’re also still responsible for the mortgage, so nothing changes in that regard.
What has changed is how the property will pass on in the event of your death. Let’s explore the differences between Joint Tenants and Tenants in Common, and why this change may have happened.
What’s the Difference Between Joint Tenants & Tenants in Common?
Joint Tenants (also called Beneficial Joint Tenants)
- You and the other owner(s) have equal rights to the whole property.
- If one owner dies, their share automatically passes to the surviving owner(s).
- You cannot leave your share of the property to someone else in your Will.
This is the most common form of ownership when couples buy property together, as it ensures the home automatically passes to the surviving partner:
Tenants in Common
- You can own different shares of the property (e.g., one person owns 60%, the other 40%).
- If you die, your share does NOT automatically go to the other owner(s).
- You can leave your share to someone else in your Will.
This structure is often used for business partners, co-owners with unequal investments, or separating couples who don’t want their share to automatically pass to their former partner.
Why Would a Joint Tenancy Be Severed?
There are a few reasons why your joint tenancy may have been severed:
- Divorce or Separation: If one owner doesn’t want their share to automatically go to their ex, they can sever the joint tenancy.
- Estate Planning: Some owners prefer to leave their share to children or other beneficiaries instead of the co-owner.
- Financial & Legal Protection: If one co-owner has debts or financial risks, severing the tenancy can protect the other owner’s share from creditors.
Severing the joint tenancy means that when you die, your share will now be distributed according to your Will (or intestacy laws if no Will exists).
How Can You Change Ownership Status?
Changing from Joint Tenants to Tenants in Common (Severing the Joint Tenancy)
- Can be done unilaterally: One owner can do it without the other’s consent.
- Requires a written notice (the ‘Notice of Severance’)
- The Land Registry is updated, and the other owner is informed after the fact.
This is common in divorces or separations where a couple no longer wants automatic inheritance rights over each other’s property.
Changing from Tenants in Common to Joint Tenants
- Requires agreement from all owners.
- Usually involves a legal trust deed prepared by a solicitor.
- Ensures the property automatically passes to the surviving owner(s).
This change is usually made when couples marry or want to ensure their partner receives full ownership if something happens.
What Should You Do If You Receive a Notice of Severance?
First, don’t panic. This doesn’t mean you’re losing your home, or that you have to cover the mortgage alone.
Here’s what you should do next:
- Review or Update Your Will: If your joint tenancy was severed, you now need a valid Will to decide who inherits your share. We can assist you to find an appropriate Probate Lawyer
- Understand the Implications: This change could impact your divorce settlement, estate planning, or tax situation.
- Seek Legal Advice: If you weren’t expecting this change, it’s important to know why it happened and what your options are. You can contact us and together we’ll sort it with our legal partners at Paradigm Family Law LLP.
Final Thought: Be Proactive, Not Reactive
Whether you’re severing a joint tenancy or considering making a change, it’s crucial to have a Will in place that reflects your wishes.
And remember:
- Divorce invalidates any reference to a spouse in your Will; so you will need a new one after your divorce is finalised and we can assist you with finding a probate lawyer.
- The Court has the power to adjust property ownership in divorce cases, so this change won’t necessarily determine your final settlement.
Need Help?
Do you need clarity on your joint tenancy situation? At whatwouldajudgesay.com, we specialise in helping you navigate through the divorce process, this includes property ownership changes during divorce and separation. Our fixed-fee service makes the process much simpler, faster and more affordable.
Start with our free assessment; it’s designed to help you share your unique situation and organise all your information securely in one place, or feel free to give us a call on +44 (0)20 3951 0212 or email hello@whatwouldajudgesay.com.
Keep on reading: Discover more on why early evaluation makes a significant difference; The Powerful Case for Early Evaluation in Divorce.