Page 21 - Rooftops Summer 2019
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                 House ownership options for separating couples
Jane O’vel Family Solicitor at Steed & Steed LLP discusses the pros and cons of owning your house either as joint tenants or tenants in common when going through a divorce or separation
There are two ways in which a property can be held, either tenants in common or joint tenants. Most married couples own their home
jointly as “joint tenants”.
If a jointly owned house is held on a
“joint tenancy” it means that both owners technically own the whole house i.e. they both own 100% of it. As a result, the whole house automatically passes to the surviving spouse when one of them dies. This happens regardless of the terms of any will the deceased might have made.
By contrast, a house owned as “tenants in common” means that each of the two owners holds a specific share of it.
Whilst this is often in equal shares of 50%, the percentages may be split differently. The ownership shares of each party are set out in a document called a declaration of trust. If one of the joint owners dies, their share does not automatically pass to the survivor rather it is distributed in accordance with the terms of the deceased’s will. If the deceased does not have a will, then the share will be distributed in accordance with the intestacy rules. This could mean that the share passes back to the spouse, if they were still married, but the
intestacy rules might force the spouse to share the property with children. This may not be satisfactory or desirable for various reasons. It is therefore very important to make a will, and there is no need to wait until the conclusion of your divorce; the earlier you do this the better.
If you are separating from your spouse with a view to divorce or judicial separation, or if you are not married but are separating from a partner with whom you own a property jointly, you should consider at an early stage whether it would be of benefit to change the basis of ownership of your property.
If you hold the property as joint tenants, you may not wish it to pass automatically to your spouse/partner in the event that you were to die unexpectedly before proceedings are complete. Your lawyer can advise on the necessary steps to take in order to turn the joint tenancy into a tenancy in common. However, if you do this, it is very important that you also make a will, in which you specify what is to happen to your share of the house. The important
thing to bear in mind is that by changing a joint tenancy into a tenancy in common, you would not automatically inherit the half-share of the house held by your spouse/partner if they were to die unexpectedly before the proceedings were concluded.
The decision as to which is the most appropriate way of owning your house can be a finely balanced one, and will depend on your individual circumstances. Your lawyer will be able to discuss the options with you so that you can reach the decision that is right for you.
You should also keep this decision under review, in case it needs to be changed at any time before all matters between you and your spouse/partner have been finally concluded.
n With offices in Sudbury and Braintree, Steed & Steed provides a wide range of legal advice suited to the specific needs of each client.
Jane O’vel, Family Solicitor
E: Sudbury Office: 01787 373387 Braintree Office: 01376 552828

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