Sever the Tenancy of a Jointly Owned Property During a Divorce

Normally, when couples buy a property together they do so as joint tenants. This means they both own the whole of the property, and ownership automatically transfers to the other owner if one of them dies.

While this arrangement can make sense when a couple first buys a property, it may become unsuitable if their circumstances change. Severance is a process that enables joint tenants to change their legal ownership to tenants in common. During a divorce, it’s widely recommend to sever the tenancy of a jointly owned property.

Types of Property Ownership

Sole Ownership

This is the simplest form of ownership. A single individual owns the property entirely in their name, giving them full control over decisions regarding the property. No other party has a legal claim to the property.

Joint Tenancy

Joint tenancy is a common ownership structure for couples. Under this arrangement, both parties own the entire property jointly and equally. One key feature of joint tenancy is the right of survivorship: if one party dies, the surviving co-owner automatically inherits the property. This transfer happens without the need for a will or probate.

Tenants in Common

In a tenants in common arrangement, co-owners hold individual shares of the property. These shares don’t have to be equal; one party can own a larger or smaller portion than the other. Importantly, there is no automatic right of survivorship—if one co-owner dies, their share of the property is passed to their heirs, not the surviving co-owner.

Why Sever a Jointly Owned Tenancy During Divorce?

Many married couples own property as joint tenants, but this structure may not suit a divorcing couple’s needs. Here’s why severing the tenancy might be a good idea:

Protect Your Share: Severing the joint tenancy converts ownership into a tenants in common arrangement. This ensures that your share of the property will not automatically pass to your ex-spouse if you pass away. Instead, your portion can be left to heirs or directed according to your will.

Estate Planning: For those using legal fee lending, such our own services, severing the joint tenancy ensures that your share of the property will become part of your estate, enabling repayment of any debts.

Clarity During Divorce: Moving to tenants in common can simplify financial arrangements during the divorce process, making it easier to divide assets fairly.

The Process of Severing a Joint Tenancy

Severing a joint tenancy might sound complex, but the steps are straightforward and typically handled with the help of a solicitor. You can do this yourself if you wanted to, and the forms to do that are on the GOV website. Here’s what the process involves:

Serve a Written Notice of Severance: You need to provide written notice to the other co-owner(s) that you intend to sever the joint tenancy. This can be done by your solicitor.

Obtain Proof of Service: Evidence that the notice was delivered, such as proof of recorded delivery, should be obtained.

Complete Form SEV: Fill out the SEV form, which is required to officially notify the Land Registry of the change in ownership structure.

Submit to the Land Registry: Send the completed SEV form, along with any necessary documentation, to the Land Registry.

Update the Title Deeds: Once processed, the Land Registry will place a restriction on the property’s title deed, confirming that it is now held as tenants in common.

Keep These in Mind

While severing a joint tenancy can provide peace of mind, it’s not a decision to take lightly. Here are a few points to keep in mind.

Consult a Professional: While in theory you could sever a joint tenancy yourself, we always recommend you speak with your solicitor or an independent legal advisor to ensure this is the right step for your situation.

Update Your Will: If you sever the joint tenancy, make sure your will is updated to reflect how you want your share of the property to be distributed.

Communication is Key: Letting the other co-owner know about the severance and its implications can help avoid misunderstandings.

Closing Thoughts

Severing a joint tenancy can be a vital step in protecting your financial interests and ensuring fairness during divorce proceedings. While the process is relatively straightforward, professional guidance is invaluable. Speak with your solicitor to determine if this option aligns with your goals and circumstances.