Severance of Joint Tenancy
Two methods by which a joint tenancy can be severed are considered below.
Written notice
The most common way in which a joint tenancy is severed is by one party unilaterally giving notice to the other, as provided for by the Law of Property Act 1925 Section 36(2). The terms of Section 36(2) make it clear that a notice of severance operates, and must be intended so to operate, immediately, that is, not at some unspecified time in the future.
Under the Law of Property Act 1925 Section 196(3), a notice is sufficiently served if left at the last known abode or place of business of the addressee, even if it had not come to the attention of the person to whom it was sent.
Commencement of court proceedings
The extent to which commencement of proceedings severs a joint tenancy is by no means clear.
The mere filing of a divorce application does not sever, whereas the filing of an application under the Married Women’s Property Act 1882 Section 17 seeking equal distribution has the effect of severance. The difference may be that in the first instance, the financial order application is in a non-specific form and it requires a further court application to trigger the court process, a Form A.
The question then arises as to what may be the effect of an application in Form A being made, which seeks an outright transfer of the house held by joint tenants. From the words of Dillon LJ at the end of Harris v Goddard, see below, it seems unlikely that such an application would operate to sever the joint tenancy. For the success of the application depends on the exercise of the court’s discretion and an order operating on the beneficial interests of the parties lies in the future.
However a court order following such an application, and which alters or defines the trusts, may operate to sever the joint tenancy at the time of the order in the absence of any other provision in the order.
Case law
There are surprisingly few relevant authorities, two cases, very briefly summarised as follows:
In Harris v Goddard [1983] 3 All ER 242, [1984] FLR 209, CA in a divorce petition, the petitioner sought, under section 24 of the 1973 Act, to sever the joint tenancy in the family home. The respondent died in a car crash before the hearing. It was held that the mere inclusion of such a prayer did not itself operate to sever the joint tenancy. The desire to sever must be immediate. A prayer in a petition was an invitation to a court at some future time to sever the interests, and was not immediate. The joint tenancy had not been severed and the petitioner took the entire property.
For cases where the court has considered whether negotiations relating to ancillary relief were sufficient to effect a severance of a joint tenancy see McDowell v Hirschfield Lipson & Rumney [1992] 2 FLR 126, [1992] Fam Law 430 (in which it was held that the joint tenancy had not been severed).
In Hunter v Babbage [1995] 1 FCR 569, [1994] 2 FLR 806 it was held that the joint tenancy had been severed. An agreement was reached in December 1989 and a consent order drawn up to the effect that the property was to be sold forthwith and the proceeds of sale divided in an agreed proportion. H died on 5 April 1990. Held: this agreement severed the joint tenancy.