Family Law

As we all know, the consequence of purchasing the family home in joint names is that this brings into operation a default rule that, unless the contrary is proved, ‘joint tenants in this context are treated as joint legal and beneficial owners’: Fowler v Barron [2008] EWCA Civ 377, [2008] 2 FLR 831, at para [34], per Arden LJ. But if the parties’ beneficial interests fall to be treated as identical to their legal interests (in effect, giving rise to a joint tenancy both at law and in equity), at what point is the joint tenancy in equity severed so as to give rise to a tenancy in common under which the parties have distinct and separate beneficial shares in the property? Moreover, how does the mechanism of severance actually operate so as to give rise to separate and unequal shares?

The answers to these questions may have an important practical consequence if one of the joint tenants dies during the period of co-ownership and (in the absence of any severance by mutual agreement or written notice under s 36(2) of the Law of Property Act 1925) the deceased’s estate claims that there was a fresh and different common intention to share beneficially as tenants in common generating a severance of the joint tenancy which (in turn) brought to an end any right of survivorship in favour of the surviving joint tenant.

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The full version of this article appears in the October 2016 issue of Family Law. 

Online subscribers can access the article here. 

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