Can I stop my husband severing our joint tenancy?

Q My marriage has broken down. I have property in France (where the family home is) and a house in Devon, which is let out. Both are mortgage-free.

My husband has severed the joint tenancy on our English property, doing this himself by copying information online. He notified me he was doing this and even asked me to agree. I refused, however, because he had offered to transfer title to me 100% as a settlement in return for me transferring my share in the family home in France to him. I am concerned that he will now attempt to sell his share or raise a loan, which is something he threatened to do before serving this notice.

I am perturbed that a severance is so easily obtainable, without the joint owner having any say or recourse? I have two children to protect as well as myself and I would like to know what, if anything, I can do to counter this action? VI

A There’s nothing you can do to counter your husband’s action but nor do you need to worry unduly about it. Severing a joint tenancy does not change who owns the property. It only changes the manner in which it is jointly owned. When you were still joint tenants, it meant that both you and your husband owned the whole property and on the death of either of you, ownership of the whole property would have passed to the surviving spouse automatically.

Severing the joint tenancy – which can be done with or without the agreement of the other joint owner – now means that you and your husband still jointly own the property but as “tenants in common” rather than joint tenants.

As tenants in common, you now own a distinct 50% share in the property. Unlike under a joint tenancy, your share of the property does not automatically pass to the other joint owner on your death (and vice versa).

Couples who are splitting up are often advised to change to being tenants in common so that their share of property does not automatically go to their soon-to-be-ex spouse if they die before divorce proceedings are completed. This is presumably why your husband has taken the action he has – but for his share to go to someone else on his death, he’ll need to have an up-to-date will naming his intended beneficiary.

You would also be advised to make or update your will so that your share in the property doesn’t pass to your husband but, for example, names your children as beneficiaries.

You do not need to worry about your husband selling the property or raising a loan on it. All joint owners – whether they are joint tenants or tenants in common – must agree to the sale of the jointly owned property and they cannot be forced to sell unless ordered by court. But for this to happen your husband would need to go through the lengthy and expensive business of getting a court order.

Although in theory, your husband could mortgage his share of the property, in practice he’s unlikely to find lender willing to take the risk of not being able to force a sale in the case of mortgage default.

Finally, you shouldn’t worry about the severance having an effect on your financial settlement. If a joint tenancy is severed and then either you or your husband start matrimonial proceedings, the severance will have no effect on the outcome. But you do need to come to a formal agreement with your husband and get a solicitor to send a consent order detailing your agreement to the court to make it legally binding.