In Australia, most married couples typically own property such as real estate as joint tenants in equal shares.
When a couple decides to divorce in Australia, the usual practice is to consult legal experts and come to an agreement about splitting up the property and assets acquired during the marriage.
This also includes superannuation.
Definition
With real estate, joint tenancy means that each person owns an equal share and interest in the property and should one party die, the title to the property passes solely to the surviving member of the partnership.
This is called a right of survivorship.
So even if the deceased person intended to will their property to another party, the right of survivorship trumps this, and the surviving partner will be deemed the sole owner of the real property.
Impact
The dissolution of marriage poses several questions concerning jointly owned properties.
#1) Does Divorce Automatically Sever Joint Tenancy?
While the emotional severance might be apparent, legally, a divorce doesn’t automatically sever a joint tenancy.
The property remains under the umbrella of joint tenancy with the right of survivorship unless action is taken to alter the title.
#2) Can One Spouse Sever a Joint Tenancy Without the Other’s Consent?
In Australia, it’s possible for one spouse to unilaterally sever a joint tenancy through a process known as ‘unilateral severance.’
This involves serving the other joint tenant with a notice of their intent to sever, thus converting their interest to tenants in common. However, consulting with a family law expert or property lawyer is advisable for guidance.
#3) What Happens to Jointly Owned Property After Divorce?
Selling a property during a divorce held as joint tenants can be complex
Both parties must reach an agreement on the sale and the distribution of proceeds. Lawyers are often involved to ensure this process goes smoothly.
#4) Can I Protect My Interest in a Joint Tenancy During Divorce Proceedings?
Absolutely. Initiating dialogue early, seeking mediation, and establishing written agreements on property intentions can safeguard interests.
Also, referencing a divorce financial checklist ensures all financial bases are covered.
#5) Are There Tax Implications When Severing a Joint Tenancy Due to Divorce?
Yes, there can be capital gains tax implications when changing property ownership types or selling the property.
It’s essential to understand potential tax obligations.
Joint Tenancy to Tenants in Common Conversion
In the aftermath of a divorce, it’s not uncommon for individuals to reassess property ownership structures, especially when both parties wish to retain some form of ownership or stake in the property.
Often, a property will be sold, or transferred into one party’s name as a result of the property settlement.
One viable option is converting from a joint tenancy arrangement to a tenancy in common. Tenancy in common is more flexible, allowing co-owners to possess shares in the property that aren’t necessarily equal. There is no right of survivorship; thus, each party can bequeath their share of the property as they see fit in their will.
Why Consider the Conversion?
Several reasons might drive this decision:
- To reflect an updated agreement on each party’s share in the property.
- To facilitate estate planning, allowing each individual to pass on their share of the property to their chosen beneficiaries.
- To prevent potential future disputes by clearly defining ownership percentages.
Steps to Make the Conversion:
- Serving a Notice of Severance: The first step involves one party serving a notice of their intention to sever the joint tenancy to the other joint tenant(s). This is a legal declaration of their intent to change the nature of their ownership. The notice must be clear, unequivocal, and adhere to any statutory requirements.
- Lodging Documentation with the Land Titles Office: After serving the notice, it’s crucial to lodge the appropriate documentation with the Land Titles Office (or the equivalent in the relevant Australian state or territory). This ensures that the property’s title is officially changed to reflect the new ownership structure.
- Seeking Legal Advice: Due to the complexities and potential ramifications of altering property ownership types, consulting with a family law expert or property lawyer is imperative. They can guide you through the process, ensure you’ve followed all necessary legal procedures, and help safeguard your interests.
While converting joint tenancy to tenants in common post-divorce can seem daunting, it provides an avenue for co-owners to clearly define and protect their interests in a jointly-owned property.
With the right guidance and understanding, it can be a strategic step towards securing one’s financial future after a marital separation.
Also read: Do I Pay Stamp Duty To Transfer My Property After A Divorce?
Family Lawyer Roles
When it comes to complex issues like joint tenancy agreement relationship breakdown, transfer of joint tenancy to sole ownership, or even understanding how to transfer joint tenancy property after death, it’s prudent to consult an expert.
A family lawyer offers valuable insights, ensuring your rights are upheld and guiding you through processes such as challenging a joint tenancy (if you ponder, “Can joint tenancy be contested?”) or managing a house in a joint name divorce scenario.
For comprehensive information on Australian family law, particularly around property matters, it’s worth exploring the Family Court of Australia and the Federal Circuit Court of Australia’s overview.
Facing Questions on Joint Tenancy and Divorce?
Let Justice Family Lawyers guide you through this complex property and marital law intersection. Our dedicated team provides clear, personalised advice tailored to protect your interests. Reach out to Justice Family Lawyers today and ensure your property rights are in expert hands.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
37 thoughts on “What is Joint Tenancy and Its Impact on Divorce”
If the the joint tenant separated 48 years ago and one died. Is the joint tenancy automatically ceased here in Queensland
Thank you
In Queensland, if a joint tenant has died, then the joint tenancy automatically ceases.
Hello, my wife and I separated in 2016 and I’m refinancing to my name and paying my wife a sum of dollars for this. Are we better off to get divorced and then refinance? It seams like the family court is totally confusing in regards to orders of consent which is a path my settlement agent suggested to reduce sales tax.
Regards
Tom
Hey Tom, you should get consent orders when you do this. If you are refinancing into your name, there is going to be a transfer of property to you. This will incur stamp duty. If you have consent orders, you will avoid paying the stamp duty. Consent orders are pretty straight forward, we prepare the documents and submit it to the court to finalise. Contact us if you want assistance with this.
If we have a property in 4 names and one of the 4 owners gets into a relationship after the purchase and then divorces down the track, what is the difference if we have a tenants in common or joint tenancy in this case. What is the best way to protect all the other 3 owners
Hi Robert, the owner will have a 1/4 share of the property and that 1/4 share will be included in the asset pool to be divided between the husband and wife. It would make things a lot cleaner if you changed your tenancy from joint tenancy to tenants in common where there is a clear distinction that you all own a 1/4 share.
Hi, in qld, property is in joint ownership, after divorce, can one party sell own 50% ownership to daughter? If can, what process need to be done? Thank you!
Hi Wendy, if the property is in joint tenants then you cannot do this without changing this to tenants in common.
thank you great info.
Hi, my ex husband and I divorced in 2019. We kept the family home, which is in both our names as joint tenants as we didn’t want to disrupt the children and the family basically guilted me into not touching it. There was never a property settlement. My ex simply promised he would pay me some money once he received his inheritance in the years to come. He has been paying the mortgage and I’ve had to rent. 5 years on the home is worth a lot more now. Do I still have the right to half of the house?
Hi
You still have a right to a property settlement. I am unable to say that it will be 50% but it will be a significant amount if you were married and had kids and made contirbutions to the property. It will also consider that he has made post separation contributions, but he has also got the benefit of living there. You sould really contact our office for futher advice.
Hi Hayder
I recently found out that my husband of 20 yrs has a mistress and child in the Phillipines. We own all our properties under joint tenancy. Can his mistress put a claim on these properties in future?
Generally, assets including properties held under joint tenancy, are considered part of the marital asset pool for division upon separation or divorce. The mistress herself may not have a direct claim on the properties unless she can establish some form of financial contribution or other relevant legal ground. However, should in the future, she and your husband go through a property settlement, his assets including his share of any jointly owned properties would most likely form part of that asset pool. For specific advice on how best to protect your interests, its advisable that you get in touch with an experienced family lawyer.
My husband and I are separated pending divorce. We are selling our house owned as tenants in common. I own 99% of the property. Upon settlement, can my 99% be transferred to my personal bank account so my husband has no access to my share of the proceeds?
You will have to both consent as to how the money will be distributed to each of you. In a marraige, even if you own 99% of the property, it does not neccessarily mean you will receive 99% of the proceeds of the sale.
Hi, if my parents (both still alive) added me to the title of their home in a joint tenancy (2 years prior to my separation) , do I need to consent to being removed or are they free to remove me at anytime? Also, as I’m recently separated, is my 1/3 of the property considered part of the marital pool or at the very least to be considered a future asset?
In a joint tenancy, co-owners have equal rights to the property. If your parents wish to remove you from the title, they will generally require your consent to do so or an order from the court.
Assets acquired before or during a marriage may be considered as part of the marital pool. Your inclusion on the title of your parents’ property may also be viewed as a gift or financial contribution from your parents. However, the specific treatment of this property after separation can be complex and depends on various factors, so it is recommended that you seek legal advice from a family lawyer to understand your rights.
Our property (Family Home) is in joint names (*my Husband and I). We are about to seperate and my Husband wants to buy me out using money given to him from his Sister for that purpose. After I receive my payment of 50% of the value on property can she then become JOINT OWNER with my Husband.?. This is her wish, but I want to make sure we can do this legally. I intend to buy another property and move on. Thank you. Appreciate your kind assistance on this one.
Hi, there are several things to consider before proceeding with a transfer of property ownership. We therefore recommend that each party involved consults with a family lawyer or conveyancer familiar with the property laws in your specific state or territory to ensure a smooth and legally sound process.
The process of transferring ownership requires the preparation and correct execution of legal documents, such as a transfer of land document. Additionally, your consent, as a current joint owner, will likely be required, along with consent from any mortgage lender if there’s an existing mortgage on the property. Given that the transfer may incur stamp duty, it’s important to clearly define who will bear these costs.
A key consideration is implementing a clear financial agreement detailing the terms of the buyout and any subsequent joint ownership arrangement. This will pre-empt any disputes that may arise down the track. It’s advisable to have this agreement drafted by a legal professional to ensure its legality and enforceability.
Hi my husband and I separated in 2018 but want to buy an investment property together, do we put it into joint names or as joint tenancy?
Hi, if you and your husband are considering joint tenancy, this means you would both hold an equal and undivided interest in the property. It’s important to be aware that in the event of either of you passing away, the share of the property automatically transfers to the surviving party. On the other hand, opting for a tenancy in common would allow you each to own a specific percentage of the property. In this scenario, if one party passes away, their share doesn’t automatically transfer to the other; it becomes part of their estate, following their will or intestacy laws.
Given the intricacies involved, particularly in light of your separation, seeking legal advice from a family lawyer or potentially a conveyancer is strongly recommended.
me an my brother own a 2 property just me him his going through a divorce is she liable for any claims?
Given the complexity of family law matters, it is strongly recommended that your brother seek advice from a family lawyer to understand his specific situation. A lawyer can provide guidance the impact of the divorce on jointly-owned properties, and any legal steps that may be necessary to protect his and your interests.
My son and I are joint tenants in an inherited property (my mothers). If my son and his spouse divorce , how can we protect this proprty from being sold as part of the divorce settlement as It was my mothers intent that it stay in the family?
You will need to ensure that your son and his spouse sign a Binding financial agreement to protect the inheritance. Otherwise, it will be included in the asset pool.
Hi. What is your advice to the following scenario. A couple who have been together for 5 years (in their mid 20s) wish to buy a property. One person in the relationship is going to put in 80% of the deposit and the other 20% but will pay the loan back equally. Would the best arrangement be tenants in common or joint tenancy? How can that person putting in the majority of the deposit protect themselves in the case of the relationship ending?
In your case, “tenants in common” would be more suitable. This arrangement allows each person to own a designated share of the property (80% and 20% in your scenario), which aligns with the uneven deposit contributions. To safeguard the person contributing more to the deposit in the event of a relationship breakdown, a “Binding Financial Agreement” is recommended. This legal document can outline how financial contributions and property will be handled if the relationship ends. It’s crucial to get legal advice to ensure this agreement is properly drafted and enforceable.
Is there a way to check whether our existing property is joint tenancy or tenants in common? By default if a couple purchase a property, is it always joint tenancy?
Thank you
To check if your property is held as joint tenancy or tenants in common, you can look at the Certificate of Title or conduct a Title Search through your state’s land registry service. In Australia, when a couple purchases a property, it’s not always automatically joint tenancy.
legally marriaged couple bought the house under their names, when one goes, does the other one automatically become the sole owner of the house? can deceased’s previous children get the share of the house at all ?
If a married couple owns a house as joint tenants, the surviving spouse usually becomes the sole owner of the property upon the death of the other spouse. This is known as the right of survivorship. However, if the property is owned as tenants in common, each owner has a separate share in the property, which can be left to someone else in their will. The deceased’s children from previous relationships might in some cases have a claim to a portion of their parent’s estate, however this is more likely if the property was owned as tenants in common.
Hi Jasmin,
I have conduct the search, it is the tenants in common, what should we do is easier for us to ensure previous children don’t get a share of the 50%. Make a will or change to joint tenancy? Thanks for your reply.
Hi, please contact our office directly to receive further advice on your situation.
My ex husband and I divorced back in 2004 with a private cash settlement.
We are still recorded as Joint Tenants on the COT which was never altered.
My ex husband and I wish to protect my interest in the property for two reasons:
1. To safeguard our childrens inheritance
2. To help protect against ownership claims from his new spouse.
Does Right of Ownership still apply after 20 years and does our Joint Tenancy offer any protection from future divorce settlement with his current wife?
As joint tenants, you and your ex-husband have equal ownership of the property, which includes the right of survivorship. To protect your children’s inheritance and safeguard against claims from his new spouse, you may wish to consider severing the joint tenancy to become tenants in common. This allows you to specify your share of the property in your will and offers better protection in case of his new marriage.
Hi, Me and my husband has a house as Joint tenancy in QLD. and still paying the mortgage from our joint account.
We just separated few months ago, not divorced yet.
I would like to sell our house and live separately as soon as possible but my husband disagree.
If I just leave the house, stop paying money to our mortgage joint account, will I lose the right to receive money when the house is sold?
(Our house’s value goes up since we purchased, so even with the mortgage, we should gain some when we sell the house.)
Thank you in advance.
Hi Az,
Please get in contact with us directly as we will be ale to assist with a property agreement.
Thank you.