Many married couples co-own their property under a “joint tenancy”. This is a legally binding contract that confers sole ownership rights on the surviving spouse if the other dies. But what happens if you decide to divorce? Not all separating couples sell the marital home. You may need to keep the family home for one of you to live in with your children, for example. But maintaining a joint tenancy after separation can become confusing and cause problems when it comes to inheritance. This is why couples often pursue severance of a joint tenancy after divorce. In this guide, we’ll explain the process and the options available to separating couples.
What Is a Joint Tenancy?
Joint tenants or “beneficial joint tenants” have equal rights to the whole property, regardless of who paid the deposit and how much you each contributed to the mortgage during the course of the marriage. If one spouse dies, ownership automatically passes to the surviving spouse — you cannot pass on ownership of the property in a will if you have a joint tenancy.
Why Would You Keep a Shared Property After Separation?
Many separating couples choose to sell their marital home and make a fresh start when a relationship comes to an end. But this is not always either possible or desirable. Potential reasons for keeping a shared property after divorce include:
- Maintaining stability for children
- Keeping a property that delivers an income, for example, a family home with an annexe used as a holiday let
- A slow property market that could result in a low sale price
- A preference to wait for the divorce to be finalised before selling
- The home has been adapted to accommodate a disability of one spouse or another family member.
Switching to a Tenancy in Common
Couples who are divorcing or dissolving a civil partnership can sever their joint tenancy by changing their property ownership status to a “tenancy in common”. This means that:
- Each partner can own different shares of the property
- Ownership of the property will not automatically pass to your ex-partner if you die
- You can include your share of the property in your will and choose a beneficiary or beneficiaries.
If a separating couple does not make this change and one of them dies, ownership of the property will pass to the remaining spouse.
There is no fee for switching to a tenancy in common, you just need to notify the Land Registry of the change by completing a “Form A restriction”.
The process for severing a joint tenancy varies around the UK. This guide refers to the rules in England and Wales. Scotland and Northern Ireland have different procedures.
Can I Sever a Joint Tenancy Without My Ex-Partner’s Consent?
You are entitled to make this change without your partner’s consent. It is likely to be an easier and less stressful process if both parties agree on the change of ownership status, but there is no legal requirement to obtain your ex-partner’s consent.
If it is not possible to reach an agreement, the party who wishes to switch to a tenancy in common can engage a conveyancer or solicitor to serve a written notice of change — a “notice of severance” — on the other owner. Then complete the appropriate form — an “SEV” or a “form A restriction” — and submit this, along with any necessary supporting documents to HM Land Registry’s Citizen Centre.
Note that in Northern Ireland, you will normally have to get your ex-partner to agree to the change.
Potential Issues With a Tenancy in Common
A tenancy in common will prevent the property from automatically passing to your ex-partner if you die. However, it raises concerns over what will happen to your share if you pass away. Under a tenancy in common, you are entitled to leave your share of the property to a beneficiary of your choice. However, this could be stressful and problematic for the third-party beneficiary if your ex-partner is still living in the property and does not want to sell.
Many people who make the change from a joint tenancy to a tenancy in common work towards one person buying the other out over a period of time. Separating couples with children often name their offspring as beneficiaries to ensure that the home stays in the family — this can also represent a tax-efficient way of leaving the whole property to the children.
Selling a House After Divorce
Every situation will be unique and it is important to be aware of all the options available to you before making a decision. Ideally, the decision made about what to do with the marital home would be reached amicably between the separating partners.
If you’re keen to make a clean break and a fresh start by selling up and moving on, get in touch with our team of house cash buyers today. We’re here to answer your questions or provide a free and fair cash offer for your property. Our team of property experts are set up to work entirely remotely — we can value your home using photographs, videos and desktop research.