What protective steps can I take in respect of my property during my divorce?

One such step which we are likely to encourage divorcing couples to consider is severing any Joint Tenancies, which is explored further below.

Many married couples will own their property as joint tenants. This means that if either of you were to die, the property would automatically pass to your other spouse under the rules of survivorship. In the event of a divorce or separation, you may prefer to be able to leave your half share to someone other than your spouse, usually your children or another family member. If that is the case, we can prepare the relevant documents to sever the tenancy so that you become Tenants in Common. You then need to execute a Will because if you sever the tenancy and do not have a Will and remain married, your spouse is still likely to inherit some or all of your share.

If you are unsure, we can consider the title of your property and confirm the legal ownership.

Joint Tenants

If you are holding the property as joint tenants, this means each owner owns the whole of the property, rather than a distinct share. When a joint tenant dies, the property will pass automatically by survivorship to the other owner.

Tenants in Common

You will still hold the property jointly or in shares prescribed at the time of purchase, however, each owner will have their distinct share of the property. If you and your spouse own the property with a third party, it is likely that you will hold the property as Tenants in Common. If one of you were to die, your share of the property will pass in line with your Will rather than survivorship or if you do not have a Will, the laws of Intestacy.  After a Joint Tenancy has been severed, you will hold the property as Tenants in Common in equal shares.

How do I sever the tenancy and do I need to notify my spouse?

You are entitled to sever the tenancy without your partner’s consent, but we would always advise trying to get consent. The process is straightforward and we will need to serve a written notice on your spouse and then register an application with the Land Registry to notify them of this change. There is no fee to sever your tenancy but there are set Land Registry forms.

Your Will

If you are going to sever your tenancy, or indeed want to ensure that your assets do not pass to your spouse upon separation, we would strongly advise you to update your Will, or create one. If you do not, your assets would pass via the rules of Intestacy and if you are still married, your spouse would inherit your assets in priority.

Speak to our Family Law experts

Should you wish to discuss anything regarding the divorce process, the marital finances or separation, then please contact a member of the family team at IBB on 03456 381 381 or Louisa Guest on louisa.guest@ibblaw.co.uk.