Divorce, joint tenancy and how to prepare for the unexpected
A new case has come to light that is important for anyone going through family separation who owns a property jointly with their partner– as well as the practitioners advising them. What follows is a more complicated post than usual and I’ve done my best to simplify it.
For all those unacquainted with Section 36 Law of Property Act 1925 may I first suggest reading my initial post on this subject three years ago, which looked at severance of joint tenancy and will help you to better understand the case I am about to cover.
I explained how in English law, property is jointly owned in one of two ways: as “tenants in common” or “joint tenants”. These are tricky concepts to understand and law students have to spend long hours trying to do so! In the interest of straightforwardness, it relates ultimately to the difference it makes to the survivor when the first party dies.
If the property is owned as “joint tenants” on the death of one party, the survivor automatically inherits the deceased’s share. If the property is owned as “tenants in common” the deceased’s share will pass to their estate and will be inherited by the beneficiaries of the estate, not the surviving co-owner. So this technical difference, which most people don’t have a clue exists in law, could mean the survivor will lose out on a lot of money and also being obliged to sell the property to pay out any beneficiaries. Sometimes it is inheritance tax efficient for spouses to buy property jointly as tenants in common, but at the same time they will each make a will and if so advised, leave their share to their surviving spouse in any event. You can get further advice from a specialist in that area, which I am not.
Where parties are separating (whether married or not), and they own the property as joint tenants, practitioners know this subject should be reconsidered. Either party may sever the joint tenancy if they wish, by serving a notice on the other that is registered with the Land Registry. Thereafter they will continue together to own the property as “tenants in common”. The decision to sever usually occurs because the person concerned no longer wishes the other to automatically inherit their share of the property, on the off-chance they may die before the property dispute has been resolved either by the court or between themselves.
Severance does not affect any final division of shares in the property that may ultimately be agreed or ordered by the court. It is a “just in case” proviso because, a death during a divorce or cohabitation dispute is very rare. But it happens.
The recent case of Davis v Smith (2011) EWCA Civ 1603 was heard before the Master of the Rolls and Lord Justices Kay and Sullivan. It concerns a situation in which the divorce process was on-going, and whether a joint tenancy was severed – even though a notice of severance was never served. Despite the fact that it arose out of a divorce, this type of case is not decided by the family courts. Like Kernott v Jones, it is strictly a property matter and therefore a case for the Chancery Court with all the attendant costs.
On the surface the judgment appears quite dry, one that is easy to pass over, although it actually deals with chilling circumstances. In giving his judgement Lord Neuberger detailed the facts of the case, which like Kernott v Jones relates to two ordinary, everyday folk; this couple lived in a former council-owned property in Suffolk until divorce proceedings began and the husband left home. He then refers to the “untimely” death of Mrs Smith, who “apparently…fell down the stairs”.
Before the death of Mrs Smith, the parties had been in negotiations through solicitors. Both of them intended to serve notice of severance, but neither did so. So if the joint tenancy had not been severed, Mr Smith would have inherited the entirety of his late wife’s interest in the house despite their separation and the divorce proceedings. He argued it had not. The executors of Mrs Smith’s estate argued that it had.
The law relating to severance is set out in the leading case of Burgess v Rawnsley (1975 Ch. 429), where Lord Denning, Master of the Rolls, giving judgment referred back over a century to another case called Williams v Hensman (1861) 70 ER 862. In addition to the service of a notice under Section 36 (2) Land Property Act 1925, severance of a joint tenancy can also be effected in three other ways:
1. A certain type of act by either party
2. By mutual agreement
3. A course of dealing.
Thus in accordance with the law, and with reference to the comment of Lord Denning that “the thing to remember today is that equity leans against joint tenants and favours tenants in common” Lord Neuberger, the present Master of the Rolls, went on to carefully examine all the facts and ultimately reached the conclusion that the joint tenancy had been severed, through their course of dealings, and upholding the decision of the lower court. Mrs Smith’s interest did not pass to her estranged husband but instead passed to her estate.
It was a close run thing, since as Lord Neuberger remarked: “Neither the proposal nor the agreement to put the house on the market nor even the acceptance of a subject to contract offer could have severed the joint tenancy on their own. Even a sale could have been said to have been entirely consistent on the face of it at least with the joint tenancy continuing and applying to the proceeds of sale…what passed between the parties…went further than that”.
Lord Neuberger made reference to the detail of correspondence and the content of a meeting, as well as the advice both parties were receiving through their solicitors, and the “inevitable” application of a 50/50 split of assets on the facts of this particular case. The judge also made reference to the unequal distribution of the net proceeds of a policy in favour of the wife given the inevitability of the split in relation to the net proceeds of sale of the house. He added it was appropriate only for the course of dealings between the parties to be considered, and not “what went on in a party’s mind”. Given all those circumstances, he considered the joint tenancy to have been severed.
To what extent might this affect a case in which readers are involved? To be certain of your situation if so advised, you should sever the tenancy by notice and in any event, you should make a will. Making a will is not easy either, and I suggest taking good legal advice beforehand. Please don’t think you can simply do it yourself.
To leave it all open to argument on the basis that “it will never happen to me” is to risk an unnecessarily high tax bill, a nasty fight in potentially tragic and unforeseen circumstances and, at the very least, a substantial bill of costs which may significantly deplete an estate.
I would also refer any concerned readers to a point made in my original post. Even if it is too late, if a death has occurred and the joint tenancy is ultimately found to have been severed, an application can still be made in appropriate circumstances under the Inheritance (Provision for Family and Dependents) Act 1975.
But with it the conundrum can start all over again.
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51 Comments
Philomina on January 20, 2012 at 4:19 pm
I am going through a divorce and recently needed to undergo major surgery. I asked my solicitor about severing the joint tenancy – as I wanted to make provision for my daughter – even going so far as to show her a print of your article. As she said this was not needed, I was wondering what the counter arguments are for not doing as you generally propose above?
Marilyn Stowe on January 23, 2012 at 11:57 am
Hi Philomina
I am wondering whether you definately do own the property as joint tenants?
If you do then I am surprised. Major surgery carries an obvious life threatening risk.
The downside of not severing the joint tenancy is that if your partner predeceases you before a court order is made, his share will not automatically pass to you either. However under the Inheritance (Provision for Family and Dependents Act) 1975 you could still make a claim.
I think you should ask your solicitor to put her advice in writing so you can consider the position more fully.
Best wishes
Marilyn
cassandra on January 25, 2012 at 11:42 am
Hi Marilyn
My grandparents owned a property together. They divorced and my grandmother left the marital home with my mother and changed her will to leave her half-share to my mother. I don’t think anything official happened with the property. My grandfather continued to live in the property, eventually selling it and moving to another property. My mother wants to protect her half-share of the original property. Can this by done by application to the land registry for arestriction placed on the title of his new home to the value of half of the proceeds of sale of the original property? My mother thinks her father will not leave her anything in his will.
Any advice you can give would be much appreciated.
Cassandra
Jeff Childs on February 17, 2012 at 12:31 pm
Hi Marilyn
Would a divorce sever a Joint Tenancy or would it continue until the death of one of the joint tenants?
Rgds Jeff Childs
Paula on March 18, 2012 at 9:55 pm
I have a joint morgage with my husband who walked out before Xmas,he is renting out the house and not keeping up the morgage payments.I am a carer for 2 autistic sons so not able to work,I am not able to claim income support/housing benefit/council/legal aid due to having a joint morgage,would severing a joint tenancy help me to be able to claim the benefits I’m missing?
Marilyn Stowe on March 19, 2012 at 10:36 am
Dear Paula
I am sorry but what you write just doesnt make much sense to me and in order to advise you properly a solicitor will need full details of the entirety of your financial details.
You really do need to seek legal advice. You say you arent entitled to legal aid, but many solicitors do operate free advice schemes within their offices and you need to find one if you cant afford to pay.
I think however, given it seems there are two homes here to consider, rental income and presumably his earned income as well, it is well worth paying for legal advice as it could help you out of this shocking situation.
Severing the joint tenancy will mean that if either of you were to die, your respective shares would no longer automatically pass to the other, but as you leave your share by will. So if you do intend to sever the joint tenancy you should make a will at the same time.
Best wishes
Marilyn
maurice on June 1, 2012 at 10:35 am
My ex-wife has served me with a joint tenancy, although we live next to each other and has been friends since the break-up in 1990 my question is she has been suffering from terminal cancer and sadly died The joint tenancy severance was put through my door by her solicitor after she had died and not handed to me. is this legal?
Dave Mite on June 24, 2012 at 6:11 pm
I have split with my partner after 20 years but it has got to the stage where we hate each other.
I still live with her but I went away for two weeks and some how she has contacted the housing association and terminated our joint tenancy and changed the locks. I have had no formal letter from the housing and after all that they have given her a new tenancy contract. How can that happen and what can i do. Are the housing at fault.
rhebha on September 14, 2012 at 4:35 am
iI am divorcing my spouse I am not living in our joint owned property he is untill it gets sold he isnt co operating as he doesnt want to sell he wants me to just go away what should i do or what will the court do to protect my half
Marilyn Stowe on September 14, 2012 at 9:53 am
Rhebha
Thanks for your comment.
I think you should speak to your solicitors and take advice from them as to what you should do. You may need to be more proactive! You could for example apply to the court for an order that you take control of the sale of the property. You need to make sure that the solicitors and estate agents instructed are aware of your existence and look to you for your instructions.
Regards
Marilyn
j on November 18, 2012 at 3:17 pm
my sly husband has changed our home from joint tennant to tennants in common he didnt even say he was about to do this can i now force a sale on the house
George Morrison on February 1, 2013 at 5:06 pm
Hi Marylin
Does the Trusts of Land and Appointment of Trustee Act not affect the rights of tenants in common? I understood one tenant in common or creditor of such could apply to the court for an order for sale of the whole property to obtain payment of the debt even if the other tenant in common disagreed and was thereby thrown out. Am I wrong?
George
Marilyn Stowe on February 1, 2013 at 5:26 pm
Hi George
If property is jointly owned it is subject to a trust for sale and may be sold at the request of one of the owners. If the other owners wont agree then an application can be made to the court for a sale.
It doesn’t matter whether they own as tenants in common or joint tenants. That is relevant on death as to how their share will pass either automatically to the other if joint tenants or as they leave it by will if tenants in common.
Takes me back to my Land Law days at Uni!
Regards
Marilyn
George Morrison on February 1, 2013 at 5:59 pm
Hi Marilyn
Yep, but can an order for sale be obtained by a creditor against the wishes of the owner who does not want to sell?
Which uni and when?
George
Marilyn Stowe on February 1, 2013 at 6:18 pm
Hi George
Yes it can. Leeds 70s a long time ago!
Regards
Marilyn
George Morrison on February 1, 2013 at 6:57 pm
Hi Marilyn
I joined on 3/9/50. I was admitted in December 1974. (I am not very bright.)
Now that is a long time ago. When solicitors took on anything and everything.
The days of Rylands and Fletcher and Gibsons conveyancing and Cheshire’s Land law. The LPA and before Land registration.
Did you ever read Topham’s Land Law? I found it incomprehensdible and he was the most obnoxious judge I ever appeared before.
Ahhh! Those were the days.
Regards
George
Marilyn Stowe on February 1, 2013 at 8:03 pm
Hi George
I’m thrilled! I’m a spring chicken.
Keep writing in.
Very best wishes
Marilyn
Ruth K on February 23, 2013 at 12:18 am
can i change from JOINT TENANTS to TENANTS in COMMON without my partners permission.
heather patters on February 24, 2013 at 9:45 pm
Can my father serve a letter of severance on my mother and go for tenants in common even though my mother has dementia and wont understand. I wish we had sorted this out years ago but have we left if too late?
Goo on March 4, 2013 at 12:43 pm
I think my case is one to consider. My husband and I divorced due to his alcoholism and associated behaviour. He recently died of his affliction, before the property could be settled. Now his estranged family are coming out of the woodwork trying to make claim to the house that is still in “joint tenancy” despite the fact that he took savings from our joint account to the value of any equity, and despite the fact that the house is there for the benefit of our children. I have been paying the mortgage on my own for nearly two years with only the benefit of five pounds a week in child maintenance. How would this play out in court?
Marilyn Stowe on March 12, 2013 at 5:57 pm
Dear Goo
You could contest the claims as you have a claim for you and your children under the Inheritance Provision for Family and Dependents Act 1975 against his estate in any event.
See a solicitor because there is so little information given I cant be specific.
Regards
Marilyn
Dave on March 12, 2013 at 8:53 pm
My wife died recently, and our house is owned as 50/50 tenants in common. There are children from previous marriages, and we both wanted the protection that if the surviving spouse re-married, the family from the first marriage couldn’t lose their inheritance – all easy so far.
There is a cause in the wills to say that the survivor can continue to live in the house, and can even sell it and buy another, but a trust has to be set up, to continue to own a share.
The problem I have is that the house is approximately 80% mortgaged, and I will now be paying the mortgage.
Do my wife’s children (the trust) own 50% of what the house is worth (ignoring the mortgage) or 50% of its nett value? If it’s the nett value, does this mean their share is increasing in value by me paying the mortgage (in which case I might be best selling, settling up with them now, and then starting again in my own right.
Marilyn Stowe on March 13, 2013 at 12:04 pm
Dear Dave
Im not in a position to advise you but I have a few thoughts and would suggest you take the will to a solicitor for its exact wording to be explained to you.If it does put you at a disadvantage going forward I think it may be possible for discussions to take place so as to ensure that this is resolved sensibly by varying the terms of the Trust .
One possible and immediate solution is as you say, if you can afford it, to buy them out now, especially as house prices are low. Or sell the house.
Check the wording first and consider all your options which might even include a claim against your late wife’s estate under the Inheritance (Provision for Family and Dependents) Act 1975.
Best wishes
Marilyn
Elizabeth on April 11, 2013 at 2:16 am
Is this a free service or do you have to pay for any advice given?
Marilyn Stowe on April 11, 2013 at 7:43 am
Hi Elizabeth
I always try and reply to readers and yes it’s free of charge.
Regards
Marilyn
Elizabeth on April 11, 2013 at 2:19 pm
Hi Marylin,
thanks for your reply. I’m hoping that you could offer some advice.
My partner separated from his wife in 2010. They married in 2008 after being together for 2 years, after they married he agreed to put her name on the mortgage and the deeds to the house. He has owned the property since 2009. They have one biological child together who is now 5 years old and his estranged wife also has a son aged 12 who my partner raised as his own whilst they where together. His estranged wife never paid a penny into the property whilst they where together and she refused to work meaning that my partner supported her, the children and paid the mortgage throughout the whole time that they where together. in 2010 he moved out of the property and rented an apartment, whilst doing this he agreed to pay his estranged wife a monthly payment of £500 directly to her bank account to help pay the £750 a month mortgage, this continued up until march 2012. In September last year he discovered that his wife had forged his signature in 2009 to change the mortgage from repayment to interest only, reducing the payments to £330 per month meaning that thousands of pounds had not been paid off the mortgage. The police where involved to investigate matters and no action was taken because they couldn’t prove it was actually her that had forged his signature – even though it was not at all possible for my partner to have signed the forms at that time , the building society who hold the mortgage have said that the signatures that they have are a ‘satisfactory match’ to my partners signature.
In between this, his wife has put the house on the market twice without my partners knowledge or consent, she has had him arrested countless times with allegations of harassment, assault and abuse – even when he’s not been in the same country as her she has had the police at our door investigating her ridiculous claims! She has even tried to get him fired from his job by ringing his employers and making absurd allegations about him. It’s more than obvious that she wants him out of the way so that she can take the house from him and to get as much money from him as possible. She’s even sold his belongings that where left at the property, such as his TV, DVD player and all his work tools!
At present she is demanding through her solicitor that he should sign over the house to her otherwise she wants £50,000 from the sale of the house with all other fees to be paid for by my partner (there is only £60,000 equity in the property)
Due to the solicitors fees and various other costs that have been paid out by my partner trying to fight for access to the children and the CSA payments that he is paying, he is unable to pay for a solicitor to fight his corner. My partner and i also have a 17 month old daughter together, this seems to be the main bone of contention for my partners ex. She is absolutely determined that my partner should get virtually nothing at all from a property that he’s owned for fourteen years. We are suffering as a result of her behaviour, we are practically living hand to mouth because of the financial situation that she has put us in. My partner works for a living and therefor is not entitled to public funding, his ex has various different ‘illnesses’ which prevent her from working ( but not from partying and holidaying with her friends ) and this entitles her to public funding.
What can he do? Should he just sign the house over to her and give up? Or is there any way that he can fight this and get the 50/50 split that he wants from the property? He just seems to be trying to fight a losing battle at the moment, even though he is happy to offer her 50% from the sale of the property she just will not accept this!
Any advice that you could offer would be greatly appreciated.
Many thanks.
Marilyn Stowe on April 12, 2013 at 4:32 pm
Dear Elizabeth
The court would consider both parties requirements, giving consideration to the factors of s25 Matrimonial Causes Act 1973 and in particular to the needs of the parties and all the children of the family and then apportion the assets accordingly. Reasonable requirements include housing for both parties and income for both parties as a starting point.
There isnt enough detail in your question to advise further. I would suggest your partner does take legal advice. It sounds as though quite a lot of money is at stake and its short sighted not to do so.
Regards
Marilyn
Graham on April 13, 2013 at 10:19 am
When I bought a house with my then girlfriend she put more equity into the house and we had a tenants in common agreement drawn up. Now that we are married does this still apply? Or how do we get it changed?
Marilyn Stowe on April 16, 2013 at 12:59 pm
Dear Graham
If you own a property as tenants in common then if either of you dies that person’s half share will pass as it is left by will. A will is automatically revoked on marriage unless it specficially states the will is made in contemplation of marriage. So you may both need to make new wills.
The tenancy in common and any accompanying declaration of trust which presumably sets out the different percentages can be varied to joint tenants by agreement in which case on death your respective shares will automatically pass to the other and on sale you will each get 50/50.
On divorce however, whether you own as joint tenants or tenants in common the court will take into account the differing contributions to the property by you both.
Regards
Marilyn
Simon Hayward on April 17, 2013 at 4:48 pm
Dear Marilyn,
My father passed away two and a half years ago, and his house was left to me and my brother . We are joint tennent and in my father will it stated that we can not sell the house whiles either of us was living there for two year, at the moment we both live there and have been doing the house up to sell , my brother told me he does not want to sell but I do! It’s been over two years now, he does not want to buy me out , can I make him sell up as I want my share to set up home else where , he told me I can not make him sell up
Regards Simon
Marilyn Stowe on April 19, 2013 at 1:59 pm
Dear Simon
You can alter the joint tenancy if you are definately owning as joint tenants, to tenants in common and then your share will pass as you leave it by will.
You can also apply for an order for sale of the property. If one of you wants to sell then by law it must be sold.
Regards
Marilyn
maggie on April 20, 2013 at 7:46 am
I have partitioned for divorce. My husband has been cooperative with regards to the divorce. However he is dragging his feet about putting yhe house on the market. He wants to stay there but cannot afford to buy me out. The house is jointly owned but I left there to look after y son who had a stroke and because he was constantly moody. I always intended to move back in the spring with my son as soon as the weather got warmer as it has solid fuel heating and he did not chop or season the logs (I suspected this was intentional). The last few times I have been out there he has had the chain on the door and has asked me to give him notice of when I intend to go out there. I believe he is planning to prevent me from returning. I am sure that the house will not sell if he is living there on his own. He has no incentive to move out or sell the house. Am I able to move back into the house ?
Marilyn Stowe on April 25, 2013 at 12:30 pm
Dear Maggie
You are entitled to move back into your home but I suspect you will need some additional help perhaps with a non molestation order to prevent him assaulting you and preventing you from moving back in. You also need to get a financial order in your favour and get an order dealing with the sale of the house to make sure it sells. I think you need some personal legal advice from a local solicitor.
Best wishes
Marilyn
laura on April 22, 2013 at 5:22 pm
hi i have lived in my housing association house since 1990
the tenancy is in both my name and my ex husbands whom i divorced in 1994 and and me and my three children have not seen or heard from him since ! you probably find this hard to believe as does the housing assosiation but this is true !anyway to cut a long story short two of my children have now left home and im not in good health and due to recent benefit changes i have to pay bedroom tax on my spare bedroom .
im on income support but because my daughter is working my rent is calculated on her wages so what with the bedroom tax added on im paying nearly full rent .
i am very interested in downsizing to a two bedroom property with a smaller garden as mine is large and hard work for me to keep tidy , but when i asked the housing association about this they said i would have to apply to my local court to get my ex husbands name off the tenancy ? and i would have to seek legal advice and they did not know how long this would take . but surely if i show my divorce papers this proves my husband and i am apart ! i know my ex would not want any claim on a council house plus we parted on bad terms and there is no way he would cooperate even if i did track him down .it just seems so unfair that i cannot move house as a smaller one would be more affordable and practical but someone i have not seen for nearly 20 years is preventing this .i have never been inside a court and have no money to pursue this how do i stand ?
thank you laura
Graham on April 29, 2013 at 11:59 am
I have been sent a Notice of Severance of Equitable Joint Tenancy which includes the words: ‘I (i.e. my ex partner) shall hold the property on trust for sale as tenants in common in unequal shares as if there had been an actual severance.”
Whilst I am not resisting the sale, I want to ensure that my 50/50 share of equity is protected.
From the Land Registry site it seems that the change in tenancy does not require my consent . . . only her signed copy and proof of delivery to me.
Should I a) register my non-agreement with the Land Registry; and/or b) acknowledge receipt of the letter but not sign the certified copy as requested; or c) confirm my non-acceptance back to her solicitor or d) ignore the letter.
Thanks very much.
Graham
Marilyn Stowe on May 9, 2013 at 2:24 pm
Dear Graham
I think you should take legal advise because I don’t understand the reference to unequal shares. Has there been a typo? Notice of Severance usually means each of your share will no longer pass to the other automatically on death. It doesn’t affect your share. So take legal advise to check and thereafter I expect you will be asked to sign the document as amended and make a will detailing where your share will go.
Regards
Marilyn
Tom on May 2, 2013 at 6:55 pm
Me and my ex partner bought a house 18 months ago. We weren’t married and were are “joint tenants” on LandRegistry. We contributed different shares to get a deposit for the house. Verbal agreement was that I carry on paying everything else like bills, council tax and etc. We had a lodger who helped us with the rent, but I was paying everything else to cover monthly mortgage payments. Recently we split up, and now we are selling the house. As a joint tenants, will it be 50/50 or the court has to decide? I did put less for deposit, but I paid everything else as agreed whilst living with her… Is there any stated cases that I can look at? She said that she is going to get much more then I, is it true?
Marilyn Stowe on May 10, 2013 at 5:02 pm
Dear Tom
This is not family law, but property law. In general if property is purchased jointly then the proceeds of sale will be divided jointly unless there is a declaration of trust specifying the division or the court alters the amount having heard all the facts but based on complicated areas of property law. For an argument to succeed it has to be compelling.
You need to see a solicitor for more advise, and take with you a copy of the original purchase file and also a copy of the Office Copy Entry relating to the property from the Land Registry which will be helpful.
Regards
Marilyn
Douglas Miller on May 4, 2013 at 11:10 am
Hello Marilyn.
Please can you tell me if it is possible for me to sever the joint tenancy on the matrimonial home so as it can be placed on the market for sale. We are divorced but she refuses to leave the matrimonial home,
Marilyn Stowe on May 10, 2013 at 4:49 pm
Dear Douglas
This is two points. Severance affects how the property will pass in the event of a death of either of you. Once it is severed, it will pass as you direct in your will. An order of the court is required to obtain a sale and I assume there has been a final order determining the financial settlement. If not you need to apply but the court can adjust your respective interests in the property. See a lawyer to get specific tailor made advise.
Regards
Marilyn
Ruthie on May 8, 2013 at 2:41 am
Ms Marilyn,
My father is 83 going thru joint tenancy divorce from wife #5 whom is 56. He has had a stroke, colon cancer & in really bad health & should be in a nursing home for the greater good. She’s rushing the issue which suggests its not in his interests at all. She lives apart with boyfriend & I am oldest daughter from his 1st marriage concerned in his welfare but unable to care for him myself. I’m sure his time here is limited but I prefer to see him have hot meals & clean sheets at nusing home rather than her get his home to sell once he’s passed. The home is paid in full, but creditor are after her, & she has totally neglected his needs the past 4 yrs, therefor the joint tenancy is her idea. Any advice, I’m clueless! Kindest regard
Marilyn Stowe on May 10, 2013 at 5:15 pm
Dear Ruthie
Your father needs to see a solicitor and put his affairs in order.
Regards
Marilyn
shining star on May 8, 2013 at 1:43 pm
Hello Marilyn
Similar to Graham on April 13th, I sold my home in a few years ago to pay a huge deposit on a house with my new husband (who contributed nothing to the deposit). We took the remainder of the mortgage in joint names with a tenancy in common agreement to protect my finances should I die or if we split. We are parting ways now (domestic abuse and possible adultery on his side) and he wants me and my child out, dividing up 50/50 everything including my pre marital & post house sale savings!! Solicitor tells me this is possible! I thought I had protected mine and my child’s future?? Have I been badly advised?
Marilyn Stowe on May 10, 2013 at 5:13 pm
Dear Shining Star
Without more facts on your case I cant advise you however non matrimonial assets can be ring fenced from division once reasonable needs have been met. Your needs and your contribution could well outweigh his and the court could order accordingly.
Regards
Marilyn
Barbara greenwood on May 12, 2013 at 6:49 pm
My partner and I have ended our relationship, we bought the bungalow between us, no morgage. And went tenants in common . In our will it states either surviving partner has 5 years to sell the property and move.but now the relationship has ended , he is demanding we sell.
We have taken out a lot of equity on the bungalow, so there is not enough left to buy property.also I am 73 years of age with a bad heart we have lived in the bungalow for 8 years.
I cannot cope with the stress of moving from my home.
He says he can get a solicitor to get me to sell …how true is this .regards barbara .
Marilyn Stowe on May 12, 2013 at 8:02 pm
Dear Barbara
In law a property owned by two or more people is subject to a trust for sale which means that if one person wants to sell the court will order a sale. However the relevant law is called The Trusts of Land and Appointment of Trustees Act 1996 and under section 13 the court does have power to postpone the sale. So your partner is incorrect. The best thing to do is try and sort it out amicably.
Best wishes
Marilyn
Angela on May 13, 2013 at 6:48 pm
Hi do I have thew right to sell my property that is jointly owned by myself and my ex husband of 11 years. He dissappeared the weekend before we were to see a solicitor in regard to signing the house over to me. I have since searched for him in many different ways with no luck. He has not paid a penny to the mortgage and the house has gone into disrepair due to not being able to remortgage. I have also found that he has changed his name.
Marilyn Stowe on May 15, 2013 at 10:12 am
Dear Angela
The Judge has power to sign the deed which will transfer the property to you, if this was done after a court order. Or, you need to make an application to the court for a transfer of property order if you havent done so already and then ask the Judge to sign the deed. The fact he has disappeared will not stop it all proceeding, the court will want to be satisfied you have made reasonable efforts to trace him.
I think you need a solicitor to help you and you could always offer to pay out of the net proceeds of sale.
Regards
Marilyn
Jane on May 16, 2013 at 8:36 pm
My husband died and we are joint tenants can a credit company which he defaulted on make a claim he died penniless with no assets I have 2 children under 16 and they have told me they will request a charge on the property
Nick on May 17, 2013 at 7:32 am
Over the last two years my Brother has become more and more opposed to my living in a property that we both own (Joint Tenancy), the property was passed onto us by our grandmother several years ago….
I am occupying the property while looking after my grandmother who is now 92. This is a source of annoyance for my brother because I live in the property rent free. However, I am running errands for my G/M all day who is now practically bed ridden and I am also suffering financially myself due to the location and limited opportunities in the area…if i wasn’t here, she admits herself that she would have to go into a home….
my concern is this, once my grandmother passes away, what rights do I have with regard continued occupation of the property…? It is my intention (with mutual agreement) to sell it ASAP and move on, I certainly don’t want to prolong this situation with my brother.
Does my brother have the right to ask (or expect) me to pay him rent, both our names are on the deeds and I don’t see any reason for me to pay rent to live in the half of a house that I already own, he is free to rent out his half (I would even offer to administer that for him just to keep the peace)
Jane PJ on May 22, 2013 at 6:09 pm
This is such a helpful blog, thank you for it .
This is a question I would like to ask on behalf of a friend. She and her husband are divorcing after many years of separation. He has mental health issues and she and her daughter (just 18) both have health issues (there’s also a son of 21). The only disputed asset is the marital home. She has a decree nisi, but fears that they will not reach a financial settlement before it becomes absolute and that she’d then have to pay capital gains tax on anything he passes to her in a settlement. Is this so?
Her second problem is that she can’t even afford to heat the house properly – she’s on esa – and her daughter has Raynaud’s. A half share of the house (the least she would expect ) would enable her to reduce her costs in a cheaper place – but her husband’s lawyer is spinning out the question of his competency, and it could go to the court of protection. Is there anything she or her lawyer could do to to speed things up, especially because of the health issues. (She doesn’t think her lawyer is brilliant -otherwise I wouldn’t ask here -but she has got legal aid.) Thanks in anticipation for any response you can manage.