Notice of Severance

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Notice of Severance of Joint Tenancy in Divorce

January 18, 2012 in Template Letters by Alan Larkin | 8 comments

 

In my last post Severing a joint tenancy in divorce I explained just what this painful-sounding procedure involved and why divorced or separated partners might want to serve a Notice of Severance  of Joint Tenancy upon each other.

I should have expected the request that followed: “What does a Notice of Severance look like” and “Can I prepare my own?”

Sample Notice of Severance of Joint Tenancy

Well, here it is: Notice of Severance.  It’s in Word format so you can download it or cut and paste into your own document.  As advised in my last post on this subject I would urge anyone considering using this procedure to read my previous post and obtain legal advice upon the consequences of sending such a notice pursuant to divorce to their spouse or partner.

I have also been asked: “How do I send it to my wife/husband?”

Sample letter to spouse

If you have a solicitor acting for you then they would send the Notice of Severance of Joint Tenancy to your co-owner.  I am presuming that most of the people reading my blog only have piecemeal access or perhaps no access to quality family law advice.  In that case, if you were preparing the Notice of Severance yourself and sending it directly to your spouse or partner I would suggest you do so by special delivery and use the following covering letter:

Dear Ex,

I am enclosing a Notice of Severance of Joint Tenancy which I have prepared in duplicate.  

Please sign and date both copies of the Notice.  Please then return one of the copies to me. I will then send the Notice to the District Land Registry.

Even if you do not sign the Notice, or return it to me, the effect of the notice is that our property [insert the name of the jointly owned property] will still be owned by you and me jointly but in the eyes of the law it will be as ‘Tenants in Common’.  This means that if you die before me your share in the property will pass according to the terms of your Will or under the rules of intestacy if you do not have a Will.   Your share in the property will no longer pass automatically to me.  The same situation applies if I die before you: my share will pass to the person specified in my Will and not to you.

I would strongly recommend you to review your Will and make a fresh one if appropriate.  Alternatively, if you have not made a Will, this is a good opportunity for you to do so and you should show this Notice to your lawyer.

I look forward to hearing from you with the signed Notice of Severance.

You then have to sit back and wait for the signed Notice of Severance to return.  Once it does, you will need to send it,  along with a specific form called Form SEV, to District Land Registry.  If enough people express an interest in this topic, I will consider another post devoted to the completion of Form SEV.

Note: Form SEV is subject to Crown Copyright.

 

 

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Severing a joint tenancy in divorce

January 17, 2012 in Self-Representation by Alan Larkin | 34 comments

My magic postbag reveals an enquiry about severing a joint tenancy in divorce.  Sounds painful – what’s that about then?

Well, most couples who own property own it jointly in one of two ways.  They will own it as either:

  • beneficial joint tenants; or
  • tenants in common

Beneficial joint tenancy

This means that you own the property jointly and neither of you can point to a specific share in the property.  You will both need to consent to a sale or a re-mortgage.  Most importantly, you cannot leave instructions to a lawyer to pass on your interest in a beneficial joint tenancy under your Will.  This means that when you die, your interest in the property passes automatically to your fellow joint owner or owners.

Tenancy in common

You still own the property with your fellow owner but you will both have distinct shares.  This may be 50/50 or 70/30 and so on.  You can sell your share or charge it (raise a mortgage loan on it).  But, if you die, your interest will not pass automatically to your joint owner but will instead go to the person you have named as the beneficiary under your Will.  You can therefore see that it is vital that you have a Will in place if you have a tenancy in common.  If there is no Will, or the Will is deemed to be invalid, there will be an intestacy and your share may go to someone you’d rather not benefit.

Severing a beneficial joint tenancy

Don’t panic.  Severing a joint tenancy in divorce is straightforward.  Not a drop of blood in sight.  A severance means that you wish to change a beneficial joint tenancy into a tenancy in common.  So why would I want to do that, you ask?

Well, one example, familiar to my clients, is a situation where divorce proceedings are being pursued or are being contemplated. The spouses or partners are suddenly out of love and fighting for their share in the equity (the value of the property after taking off any mortgage charges and sale fees).  In those circumstances they are not best pleased to hear that, should they die before the completion of the divorce process, their share will automatically pass to the other, surviving, spouse.  To prevent this happening, your solicitor can prepare a Notice of Severance.  Once this document is signed and sent to your spouse it has the effect of ‘severing’ the beneficial joint tenancy and converting it into a tenancy in common.  Then, of course, you will be told to prepare a Will, pronto, to define where your ‘severed’ share in the property should go in the event of your death.

At the same time, whilst dealing with a new Will, it would be necessary to change the executor of your Will as your old Will may say it will be your (soon-to-be-ex) spouse.  The decree absolute in divorce would set aside your spouse as an executor anyway and this would leave your estate without an administrator if additional executors were not appointed.

If you have a solicitor acting for you then they would normally ask you to sign two copies of the Notice of Severance, and both would then be sent to your spouse (or their solicitors).  A request would be made for one of the forms to be signed and returned so that this version (bearing both spouses’ consent) can be registered at District Land Registry and the record of the property ownership will be amended.

Anyone contemplating preparing a Notice of Severance and sending it to their spouse or partner should think carefully and take advice.  Even if divorce is inevitable, there may be children of the marriage.  If you were to die before the divorce is finalised, would you really object to your spouse automatically being given your share of the beneficial joint tenancy which would then ensure there was a home for your children?

 

 

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