FAQ - Frequently Asked Questions

  1. What is the difference between a joint tenant and a tenant in common?

Both terms refer to how a property is owned. Joint tenants own the whole of the property jointly and equally. Tenants in common, on the other hand, own a specified share, usually defined by what each owner invests into the property. For example, financial contributions towards the deposit or mortgage would determine the shares.

Additionally, tenants in common are able to control who inherits their share. If they predecease their co-owner, their share passes to whoever they left it to within their Will. In contrast, when one joint tenant dies, their share automatically passes to the other joint tenant.

  1. How do I find out if I hold my property as a joint tenant or tenant in common?

You can find out by obtaining Official Copy Entries of your property from the Land Registry. If the property is held as tenants in common, under the Proprietorship Register on the Title Register, there will be the following restriction:

“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court".

If the property is held as joint tenants, no such restriction will be included on the Title Register.

  1. Should I sever the joint tenancy?

If you and your spouse/partner have separated or are divorcing, it is a good idea to sever the joint tenancy so that you can control the devolution of your half of the property. If you died before the divorce was finalised, your spouse would automatically receive your share of the property as the other joint tenant.

  1. What is a Deed of Trust?

Also known as a Declaration of Trust, this Deed is a legally binding document used by tenants in common and is drawn up at the time of buying a property together. It records the financial contributions of both parties towards the property, such as amounts put forward for the deposit, and stipulates what should happen to the property should the tenants in common separate or the property is sold. It can also record contributions made by third parties, such as parents, and what happens to this contribution upon sale/transfer of the property.

  1. What happens if I put more deposit into the property, but we have now decided to separate?

This very much depends on whether you are married or unmarried.

If you are unmarried, and both names are on the property, the starting point will be that you own the house in equal shares. Unless you agreed otherwise in writing at the time of the purchase. For example, if one party contributed more than the other, they may have asked their conveyancing solicitor to record this in the title deeds/declaration of trust, to say the property should not be owned equally (i.e. one party owns 60% and the other 40%).

If your name is not on the title of the property, and you are unmarried, there is no automatic entitlement to a share of the property. The burden will be on you to prove otherwise and without a written agreement this can be challenging. You could be entitled to a share if:

  • You have contributed to the deposit or made improvements which have increased the property value.
  • There was a common intention by both parties to share ownership and the non-legal owner relied on this, to their detriment.

This is a complex area, and you should seek legal advice if you are unsure of your position.

If you are married, your financial position changes. The Courts will still look at how a property is owned (i.e. joint tenants/tenants in common/ sole ownership) along with any contributions made to the purchase price/mortgage/maintenance etc. However, they are by no means the only factors considered. The Courts look at all the facts of a case and ultimately, they will act on their discretion as to how the equity is divided.

  1. How long do divorce proceedings last?

This very much depends on each individual case. An estimated timeframe would be between 6-8 months from when a solicitor is instructed to receiving the Decree Absolute. However, there are many aspects of a divorce which you have little or no control over, and it very much depends upon your spouse’s cooperation and the Courts timetable. Further delays can be experienced when negotiations become protracted, regarding settling the finances.

With the advent of the online portal, however, divorce applications are being processed far quicker and the timeframe has decreased to 3-4 months, if the divorce is relatively straightforward.

  1. What are the next steps when ending a cohabiting relationship?

If you separate and are unmarried, the legal framework is somewhat different to married couples. The two main areas discussed below covers disputes over the property and claims made for maintenance for the children.

Please see above answer to question 5, in terms of your ownership of any property after you separate, specifically the paragraphs relating to unmarried couples.

If you are in dispute over a property you own jointly, or a property that is in one of your names, but you believe you are entitled to a share, then you may be able to make a claim. The Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) deals with this area of law. Under this Act, you can seek the help of the Court to:

  • Decide what share of the property you own; and
  • Whether the property should be sold to release your share.

If you have children, you may also be able to make a claim under Schedule 1 of the Children Act 1989. This deals with maintenance for children but this is only awarded in limited circumstances. However, it is worth finding out if you can seek financial provision for the children, from the other parent.

Lastly, it is worth considering entering into a cohabitation agreement, to set out how you wish to sort out issues about property, money, and child arrangements if you decide to separate. Please contact one of our legal advisers if you would like further information. 

  1. When should I apply for Decree Absolute?

If you are the Petitioner in divorce proceedings, you can apply for the Decree Absolute 6 weeks and 1 day after the Decree Nisi has been granted.

If you are the Respondent, and the Petitioner has not applied for the Decree Nisi, you can apply for it yourself. However, you will have to wait an additional 3 months to do this (on top of the standard 43 days).

We usually advise that you do not apply for Decree Absolute, until the financial matters have been settled. Some potential reasons are as follows:

  • You would lose the special status of “widow” or “widower”, if one spouse were to die after Decree Absolute, but before the finances have been settled.
  • You may lose out on pension benefits if you are no longer married.
  • It may also be important to preserve the Petitioner’s right to occupy the family home, which (under the Family Law Act 1996) would come to an end when Decree Absolute was granted.
  • There could also be adverse tax consequences if the finances are not settled beforehand.

Having said that, unless the above applies to you, there is no reason why the Decree Absolute should not be applied for prior to the conclusion of the financial aspect of the divorce.

  1. What is Mediation?

Mediation is a type of alternative dispute resolution. Mediation is a cost-effective alternative to going to Court and is something you can try, even if a Court case has started.

In April 2014 the law changed to say that before making an application to the Family Court, the Petitioner/Applicant must find out about mediation, by attending a Mediation Information and Assessment Meeting (MIAM), unless they qualify for an exemption (i.e there is evidence of domestic violence, or an application must be brought urgently).

It involves an unbiased, neutral, third party who works with the parties to try and resolve issues and negotiate a settlement. Mediators cannot give you legal advice but can help you to reach an agreement. The parties retain control of the decision as to whether or not they settle and on what terms.

Some of our solicitors are qualified mediators, so please get in touch if you require their assistance.

  1. What is Collaborative Law?

Collaborative Law is another form of dispute resolution for separating couples who seek to settle matters without Court intervention.

Collaborative Law operates as a series of meetings aimed at resolving the issues resulting from the breakdown of a relationship. The parties and their solicitors sign up to an agreement promising to try and reach an amicable agreement on all issues, in the hope of avoiding Court proceedings.

If a settlement cannot be reached, the parties cannot continue to instruct their collaborative lawyers and must instruct new solicitors to represent them. This means that both parties have a vested interesting in making the process work.

Some of our solicitors are trained collaborative lawyers, so please get in touch if you would like some further information.