When navigating a family law property settlement, jointly owned property can raise important considerations. It is critical to include your solicitor in these negotiations to ensure that your interests are protected.

Your solicitor will typically conduct a title check to establish whether the property is owned as tenants in common or joint tenants. Understanding this distinction is crucial.

What’s the difference between joint tenants and tenants in common?

The difference between joint tenants and tenants in common relates to how ownership is held and what happens upon the death of one of the co-owners. 

If you and your ex-partner own the property as joint tenants, there’s a right of survivorship. This means if one joint tenant passes away, the surviving tenant automatically inherits the deceased’s share of interest in the property. 

On the other hand, if you and your ex-partner own the property as tenants in common, the deceased’s share of the property will be transferred in accordance with their will. In this scenario, there is no claim to survivorship. 

Should I sever a joint tenancy during family law proceedings?

Severing a joint tenancy post-separation can be advisable to safeguard your stake in the property should you pass away before the property settlement is finalized. By severing the joint tenancy and including your interest in your will, you can control the distribution of your share. It’s recommended to update your will promptly following separation.

In order to sever a joint tenancy, you must complete a Transfer Severing Joint Tenancy form, submit it to NSW Land Registry Services, and notify the other party of your decision. 

What is a Severing Joint Tenancy transfer?

When buying real estate, married and de facto couples frequently do so 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 lodge a Transfer Severing Joint Tenancy as a precaution in the event of your death before your family law property settlement is finalised.

Lodging this document merely indicates that you and your spouse will become tenants in common with a 50% ownership stake in the property; and will have no bearing on your family law settlement. After that, you can specify in your will who will inherit your half of the property upon your death. 

It’s important to note that filing a Transfer Severing Joint Tenancy does not grant you ownership of 50% of the real estate in your family law case, such as the family house. Under the Family Law Act of 1975, you are not entitled to ownership of fifty percent of the property, even whether you are a joint tenant or a tenant in common.

Thus you will need to negotiate, record, and file your family law property action with the Australian Federal and Circuit Courts. A judge may issue property partition orders during that procedure, or consent orders may be agreed to. For instance, one party may keep the property and give the other a sum of money, or the property may be sold and the earnings split between the parties. 

During family court processes, navigating property ownership can be difficult. To learn about your rights and the ramifications of ending a joint tenancy, it is important that you speak with a legal professional. A family law specialist lawyer can offer you individualised counsel and help you navigate the required legal procedures.To learn more about joint tenancy in a family law property settlement, book a free consultation now.

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