If you and your ex-partner own property together, you should tell your solicitor when first providing instructions in a family law property settlement. Your solicitor will usually do a title search to ascertain if the property is held as joint tenants or tenants in common.

Joint tenants and tenants in common – what’s the difference?

If you and your ex-partner hold your property as joint tenants, then a right of survivorship applies. This means that on the death of a joint tenant, the interest in the property of the deceased joint tenant automatically transfers to the remaining joint tenant.

If you and your ex-partner hold the property as tenants in common, then there is no right of survivorship: ownership of the deceased’s share of the property passes as per their Will.

Should I sever a joint tenancy during family law proceedings?

One reason to sever a joint tenancy after separation is to protect any interest you hold in the property if you die before your family law property settlement has been finalised. Instead of the full interest in the property automatically going to your former partner, you can choose what happens to your interest by including it in your Will. Consequently, you should update your Will as soon as practicable after separation.

Your solicitor can process a severance of a joint tenancy on your behalf online using an ELNO. A Transfer Severing Joint Tenancy form is lodged with NSW Land Registry Services then provided to the other party.

What is a transfer severing joint tenancy?

Married and de-facto couples purchasing property often purchase the property as joint tenants (rather than tenants in common). If you have separated from your partner with whom you own property as joint tenants, you should consider lodging a Transfer Severing Joint Tenancy as a precaution in the event of your death before your family law property settlement is finalised.

Severing a joint tenancy does not affect your family law settlement: it simply means that you and your partner will then each hold a 50% share in the property as tenants in common. You can then direct in your Will who is to receive your 50% share of the property upon your death.

Lodging a Transfer Severing Joint Tenancy does not mean that you are entitled to 50% of the real property under the Family Law Act 1975. Your family law property matter will still have to be negotiated, documented and lodged with the Family and Federal Circuit Court of Australia.

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