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.

About Quill Legal

At Quill Legal we innovate, educate, and plan to evoke excellence and confidence. Our principal solicitor, Shams, and his team are focused on delivering an honest, first-class service. With Quill legal by your side, you have lawyers who will passionately listen, advise and advocate your rights from start to finish.

Read Our Google Reviews
5.0 Star Rating

Would you like to book a
Free Consultation?

Simply fill out this form below and one of our staff members will be in touch within 24 hours





    What our clients
    say about us

    Lovly! YT

    A big thank you to Quill Legal for all their hard work relating to my family matter.

    An absolute awesome team lead by Shams. You weren't just my solicitors, you were also my shoulder I could lean on. You took on my very complex case and got me the outcome I hoped for. A big thank you to Cindy. You, Shams and the team are an absolute gem!!

    Fynn Bricknell

    I would strongly recommend anyone seeking legal advice to contact the team at Quill Legal. Thank you so much!

    I was recommended to speak to Shams from Quill Legal by a friend after he had seen how upset I was about loosing my drivers licence. Shams and the team guided me through the process of appealing my licence suspension in court. He listened to me and answered any questions I had during the case. The process was smooth and the team was professional and very easy to work with.

    I have recommended Quill Legal services to multiple friends and colleagues all of which have had shared the same fantastic experience.

    Daniel Moy

    I was stressed out about a complex traffic infringement. I reached out to Shams at Quill and that stress went away.

    Jennifer was given my case and touched base with me constantly. I was never left wondering what was going on with my case. At court jennifer was professional and got up and did an amazing. The best possible outcome was achieved for me. It was a such a relief to hear the words come out of the judges mouth. I walked out of court a happy man. It was all because of the team at quill. If you haven’t pick up the phone and called Shams, Jennifer and the team at quill to represent you, then you called the wrong law firm.

    Diwa Venkata

    Shams is very professional and empathetic legal practitioner.

    I recently used his services for a family law case. He is thorough and understands the situation and provides apt advice. I was able to resolve my issue within no time and thanks to his meticulous service. Highly recommend Quill legal for anyone looking for family law services.

    Jay Varma

    Highly professional, responsive

    Jennifer and team helped me in one of my hardest times in life related to personal matter in family, the outcome was positive which help me come out mentally, emotionally, professionally strong. Thank you!

    Clayton Bricknell

    Shams and his team were 'the rock' when they handled my Family Law Matter.

    He was always available to discuss options that we formulated or were presented, approachable either in his office or over the phone and very reasonable in terms of the costs that related to my matter. Shams is the right person and Quill as a firm, to consider should you have the need to progress with your own Family Law matter. Thank You Shams!

    Amanda Louise

    Quill Legal helped me gain control of my life again.

    I can't thank Shams and the entire team enough for getting justice for me. They are all so helpful, determined, professional and supportive. I wish I could rate Shams and his team higher than 5 stars for what they have done for my family. Best lawyers in Sydney!

    Mark Moretti

    Professional, friendly, great advice , fully transparent

    We Help Solve Your Legal Issues

    With Quill Legal in your corner, you can be assured of a lawyer who has a passion for getting to know you and your circumstances. This enables our team and our partners to provide the best possible service for you and your family.