Severance of a joint tenancy: what does it mean when you separate?

When a relationship ends, attention often turns to the family home. Who will live there? Will it need to be sold? What will happen to the mortgage? And how will its value ultimately be divided?

If you own the property together as joint tenants, there is another issue you may need to consider: whether to sever the joint tenancy.

Severance of a joint tenancy changes the way you own the beneficial interest in the property from joint tenants to tenants in common. Importantly, it ends the right of survivorship, so your interest will no longer automatically pass to the other owner if you die.

Severing a joint tenancy does not, however, decide what should ultimately happen to the property or how its value will be divided following divorce or separation.

What does severance of a joint tenancy mean?

When two people own a property together, they may hold the beneficial interest as joint tenants or tenants in common.

As joint tenants, both owners are jointly entitled to the whole property rather than holding separate shares. One of the main features of this arrangement is the right of survivorship. If one joint tenant dies, their interest passes automatically to the surviving joint tenant rather than passing under their Will.

Severing the joint tenancy brings the beneficial joint tenancy to an end so that the property is instead held as tenants in common. It does not remove either person from the legal title or transfer the property into one person’s sole name.

This distinction between the legal and beneficial ownership of a property matters. The legal owners are those registered as proprietors, while the beneficial ownership concerns the underlying financial interest in the property. HM Land Registry’s guidance on jointly owned property provides more detail on the different ways property can be owned.

Why might you sever a joint tenancy following separation?

For many couples, owning their home as joint tenants reflects what they want while they are together. If one person dies, the other automatically becomes entitled to the property through the right of survivorship.

Following separation, that may no longer reflect their intentions.

Severing the joint tenancy ends the right of survivorship. Your interest can then pass under your Will or, if you do not have a valid Will, according to the rules of intestacy.
In practical terms, severance may therefore be one of several issues to consider when separating, alongside reviewing your Will and deciding what you ultimately want to happen to the family home.

It is important to distinguish those decisions. Severing the joint tenancy changes how the beneficial interest is held, but it does not sell the property, remove either owner from the title or determine the eventual financial outcome between you.

Do you need your ex-partner’s agreement to sever a joint tenancy?

No. One joint tenant can sever the beneficial joint tenancy without the agreement of the other owner or owners.

Where severance is carried out by written notice, notice needs to be correctly served on the other joint owner.

That does not necessarily mean acting without discussion will always be the most appropriate approach. Where a couple is already working through their financial arrangements constructively, understanding why severance is being considered and what it changes may help avoid unnecessary misunderstanding or disagreement.
There may equally be circumstances where taking action independently is appropriate. The right approach will depend on what is happening more widely with the property and your separation.

Does severing a joint tenancy mean I own 50% of the property?

This is an important distinction, particularly for married couples and civil partners who are separating.

Severing a joint tenancy changes the nature of the beneficial ownership. It does not, by itself, determine what each person will ultimately receive from the property as part of a financial settlement on divorce.

When considering what happens to the family home on divorce, the way the property is owned is relevant, but it does not necessarily determine how the equity will ultimately be divided. The court has wide powers when determining financial arrangements and will consider the couple’s wider financial circumstances and needs.

Couples can also reach their own agreement about what should happen to the property. Depending on their circumstances, that could involve selling the home, one person buying out the other’s interest or, in some cases, postponing a sale.

For unmarried couples, the position is different. The financial framework available on divorce does not apply simply because a couple has lived together. This means property rights for unmarried couples can depend much more closely on the ownership of the property and the arrangements agreed between them.

How do you sever a joint tenancy?

The process will depend in part on whether all of the joint owners agree to the change.

Where one owner wishes to sever the joint tenancy by written notice, the notice must be correctly served on the other owner or owners. An application can then be made to HM Land Registry to register a restriction on the property’s register of title which will show severance has occurred but making an application is not a requisite for severance to be effective.

Where all owners agree, they can apply together.

The Land Registry application does not resolve the wider questions that can arise on separation. Before severing, it may be helpful to consider what you want to happen to the property, how this fits with your Will and any financial arrangements you are working towards.

What happens to the family home after severance?

Severance does not bring your financial relationship as property owners to an end. You remain co-owners, and a decision will still need to be made about what ultimately happens to the home.

For married couples and civil partners, the property may form an important part of the wider financial arrangements following divorce or dissolution.

The practical question is therefore often not only whether to sever the joint tenancy, but what you ultimately need to happen with the family home.

For some couples, selling the property may be the most workable solution. For others, one person may want to remain in the home and explore whether they can buy out the other’s interest. The housing needs of any children may also influence the options being considered.

Where appropriate, couples may be able to work through these questions using negotiation, family mediation or another form of non-court dispute resolution. This can help both people understand their options, identify their priorities and work towards an arrangement that reflects their wider financial circumstances.

Where agreement cannot be reached or a court decision is needed, court proceedings remain available.

Should I sever a joint tenancy if I am separating?

There is no single answer that will be right for everyone.

Severance may be appropriate if you no longer want your interest in a jointly owned property to pass automatically to the other owner on your death. However, the decision is best considered alongside what you ultimately want to happen to the property, your Will and estate planning and, where relevant, your wider financial settlement.

If you are separating and are unsure whether severing a joint tenancy is appropriate, our family lawyers can help you understand how the ownership of your home fits into your wider financial position and explore the options available for what happens next.

If you are separating and would like advice about severing a joint tenancy or what should happen to your jointly owned home, contact our family law team to discuss your circumstances and the options available to you.