Joint tenancy and divorce: Where do you stand?

Date: Aug 28, 2014

Upon the dissolution of a marriage it is important to asses shared property and the beneficiaries of your will to ensure that everything has been done to the letter of the law. Otherwise individuals may have a case to dispute a will

In a recent case at the New South Wales (NSW) Supreme Court a man, the plaintiff, and his daughter, the defendant, did not agree on the right to ownership of a house. The deceased, the ex-wife and mother to each party respectively, lived in the house until her death in 2012. 

The house was purchased by the plaintiff and the deceased after they were married in 1956. The couple, who were registered as joint tenants, separated in 1982.

However, the couple never severed the joint tenancy and as such when the ex-wife died in 2012 the plaintiff became the sole proprietor of the property.  

The defendant, the daughter, was largely estranged from her father since the divorce. She returned to live in the house permanently in 2011 and did not pay rent or have a lease to live at the property.

In November 2012 the plaintiff presented the defendant with a letter stating that she was a tenant at will and was required to vacate the property within a month. The defendant's solicitors gave her advice on making a family provision claim under the Succession Act.

However, the defendant did not apply for a family provision order within the 12 following the death of the person concerned, so this avenue was not explored. 

Joint tenancy in NSW

The NSW Government Land and Property Information state that for a joint tenancy to occur there must be four elements present: timing, unity, interest and possession. This means that the property must be acquired at the same time, in the same transaction and with the same interests in mind. Each joint owner has an equal right of possession to the property. 

A joint tenancy in New South Wales can be ended in a number of ways, either through a court order, by agreement or by conduct. A divorce does not severe a joint tenancy, however it can be evidence for the tenancy to be ended due to conduct.  

If one of the joint owners dies the deceased's share is passed on to the other joint tenant, a will is not necessary for this to occur. 

Tenant at will

A tenant at will refers to an individual who occupies a property with the knowledge of the owner. However, the person does not pay rent and has not signed the lease. They may be asked to vacate the property due to a demand of possession by the owner.