Divorce, the law of the land – and a twist of fate

Divorce|Family Law|Stowe Family Law|January 11th 2008

“When a couple decides to divorce, what happens to jointly held property if one of the parties suddenly dies?”

In my entire career, I can recall only a small handful of cases where a party has died before the case is over. The chances may be low but it does happen.

I remember one occasion when a client’s estranged wife died of cancer. Her illness had been protracted and he had been in no hurry to progress the divorce. When she died, her share of the couple’s jointly owned properties automatically passed to him. Her relations were furious, and they decided to sue.

When I was a law student, one of the more complex areas to grasp was Land Law. It involved concepts arising from the ownership of land by the Crown more than a thousand years previously, and the introduction of William the Conqueror’s feudal system of tenanted land. Some of this law survives to the present day. My study of the subject confirmed that I was never going to carve a career in conveyancing (property transactions) because I found it so deadly dull. I couldn’t wait to get back to litigation.

However, a recent article in the December 2007 issue of Jordans Family Law by the London-based barrister John Wilson (a walking, talking Cambridge-educated brainbox!) reminded me of those not infrequent occasions many years ago when, as a hapless trainee, I sat for long hours examining clients’ title deeds.

In English law, two people can own land jointly, in one of two ways. This harks back to feudal times. They own the land as either “beneficial joint tenants”, or “tenants in common” The type of ownership has implications: if a couple owns land as joint tenants and one party dies, the land passes in its entirety to the surviving partner.

However, if the land is owned as “tenants in common” and one party dies, that partner’s share of the land passes as directed by the partner’s will. If there is no will, the land passes according to the intestacy rules – and the surviving partner does not automatically inherit the other’s share of the land. This type of ownership is useful for inheritance and capital gains tax purposes.

It is a subject that every divorce lawyer should discuss with a new client, because it is possible to “sever” a joint tenancy between parties so that land is thereafter owned as “tenants in common.”

John Wilson’s article raises the issue of what happens when a couple who hold land as joint tenants are getting divorced – and one of the parties suddenly dies. Does the land automatically pass to the other or not? If the tenancy has not been severed, can it be treated as severed nevertheless?

In the case involving my client, his late wife’s solicitors had not severed the joint tenancy before her death. However, her relatives argued that the couple’s joint tenancy had been automatically severed when he had issued the divorce petition on her. They did not succeed. The court followed the authority of a similar 1983 case, Harris v Goddard, in which it was ruled that the “prayer” to sever a joint tenancy was insufficient.

This case is also referred to by John Wilson, who goes on to discuss whether a joint tenancy can be automatically severed by an application for ancillary relief seeking a property adjustment order. In my client’s case, the prevailing view of the Queen’s Counsel we instructed was that it probably would have done, had one ever been issued. In this matter, John Wilson refers to the case of Hunter v Babbage (1994). In this case, a party died after an application for ancillary relief had been made, agreement had been reached and an order of consent relating to the sale of the marital home had been drawn up. The court held that the couple’s joint tenancy had been severed by the agreement that had followed an application for ancillary relief. However, as the agreement was not a court order in that case, it was not necessarily enforceable. Although the order of consent had specified that the proceeds of sale were to be divided in an agreed proportion, the court found the parties owned in equal shares.

In truth, the death of a party is an easy point to protect against. If a wife wishes to sever a joint tenancy and bequeath her half-share elsewhere (usually to her children), she will always want to know if she will then be left homeless if her husband predeceases her before the case is over and leaves his share elsewhere. The answer, of course, is she won’t. Notwithstanding the husband’s bequest, the court will first consider the wife’s claims to a settlement under the Inheritance (Provision for Family and Dependents Act ) 1975. She can expect to receive a similar award to that she would have received if the husband had survived and the court had made an order in the usual way.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Teresa Hennessy says:

    I have just finalized my divorce and have a consent order for 60/40 split on house, 50/50 pension and spousal maintenance/child maintenance of £1000 per month until I am 60 in two years time when the pension will come into play. My question is the family home is in my ex-husbands name and I have registered my rights at the land registry. If anything happened to my ex-husband does the house go to his estate. He had never made a will and will be 60 this year. He is now asking me to put the house into joint names to avoid CGT because he would have been away from the family home for three years. I would like your advice because it is likely the house won’t sell this year in the current climate. I think it should be transferred into my name because we still have a son at home, soon to be taking his A-levels. Please let me know what you think, only I havn’t seen any information on this subject when the house is solely owned by the ex. Thank you, Teresa

  2. W says:

    I’m hoping you can advise me with ‘where to go from here’ and ‘what can be done/if anything at all can be done’, as I’m at a total loss with this one.
    My parents separated and divorced when I was a child, the year would have been around about 1985. My brother and myself moved with our mother, and our father was left living in the family home.
    Both parents names where on the mortgage, so both owned .5 each. My father was asked to buy my mothers half share of the house, but at that time ‘claimed he was unable to finansualy’, and instead offered a different solution.
    He told my mother that he would not likely continue living in the house in defiantly, instead he intended to put the house on the market in a years time, and when it was sold he would then ‘give my mother half of that sale’. Rather than it being ‘an option’, it was more a ‘like it or lump it’ that my mother felt forced into rather than agreeing to.
    My father was a violent and controlling man, having finally managed to break free of him for good, she wanted no contact with him whatsoever, she feared the man and had always lived in fear of him. Due to this, she took the offer that she was given and signed the contracts he had drawn up.
    The contracts stated that ‘when the house was sold, my mothers half share would be divided 50/50 between my brother and myself, and would be placed in savings/trust fund for the future, this being done/set up by our father himself.
    My father has since always stated that 2 accounts where opened by hiself, one one each for my brother and I, and that we would inherit this money ‘only after his death’.
    Now I have always wandered wether or not he was true to his word, and due to past experiences and is selfish nature, I have doubted very much that this was something that was not done and most likely was never intended to have done. Over the years I have tested the waters, asked to be shown the information proving that he had indeed kept his promise, and done what the contract stated me must do, but still to this day have not seen a shred of evidence proving this.
    Due to many years passing since, I’m afraid to say that ‘not all information/ documents’ made it to today, and there a papers belonging to my mother that have somehow been lost between homes we have lived at since.
    My mother has prove that she did Infact have her name on both ownership and mortgage of the property, but has not got the complete documentation regarding this contract that was set up about her ‘half share’ of the money and what he was to do following the sale.
    So problem one is this- Would the document she has got be enough to prove there should be inheritance owed by him, that would be later passed on to his children. And if ‘No’, and more information would be needed, ‘how would she go about finding the information that was needed, where to go from here.
    The second problem is this- the family home was sold sometime during the 1990’s, and ‘I think’ was sold on to the council, who had intended to have the house demolished. I have no prove of ‘who the house was later sold to’, but assume it would have been local authority due to the row of houses that the house stood next to. The row of 4 quarry men’s cottages where taken down stone by stone and moved on to a local museum, leaving just two houses remaining, one having stood eather side of the 4 quarry men’s cottages. We have since tryed hard to find information online, or prove of the family home having indeed been stood In that spot duering the past, but I’m afraid our search has been in vain, have since not gone any further from this. The problem is that the postcode is no longer in use, and there doesn’t seem to be any information in the land registers aether.
    I have since been told that my suspicion regarding my father have been most likely true. He has , or ‘so I’m told’ been bragging about his plan to swindle, and bragged about having managed to keep and spend both his share, and my mothers share from the sale of the house, and assumes that nothing can be done about it and he will not get in anyt trouble for spending all the money, due to the fact of him ‘no longer being here on the day we eventually find out’ about it.
    I would be greatful of any advice you could offer, no matter how small, anything would be much appresiated as I’m at a total lose and have no clue what can be done and how.

    Kind regards

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