Severing a joint tenancy during divorce
Dear Mrs Macaulay,
My husband and I bought property through a 35-year mortgage six years ago. The bank made it joint ownership, and we were not given a choice to choose otherwise. Fast forward to today; we are headed for divorce and both still live in the house with our children, but we have separate lives. I intend to migrate with the children and have no interest in the property for myself. However, he refuses to sell. I am aware that if either of us passes, the property moves to the other person, and I am uncomfortable with the property going to him, and his new wife in the event of my demise, and not automatically to our children. How could we resolve this?
Save for stating that you and your husband are headed for divorce and that you both still live in the family home with your children, but live separate lives, you have not said anything further about the proceedings. Has a divorce petition been filed? If so, by whom? Are you the petitioner or the respondent? Have you in fact retained an attorney-at-law to act for you and represent your interests and see to the preparation of your applications for the custody, care and control of the children and for the provision of adequate maintenance for them?
You have to make arrangements for the above applications which the law provides for children generally, and specifically, before you even think about the family home property. You must, of course, obtain either your husband’s permission for them to go with you when you migrate, or obtain an order of the court to do so. An application for this must be made in the course of your divorce proceedings for them to migrate with you after the decree absolute is granted. In fact, you should have disclosed your intent to migrate with them in your petition and in the documents in which you inform the court what arrangements you have made or are making for the upbringing of the children. Remember that your husband has the legal right of access with his children which I suggest should be specific and for fixed periods of times. The court has to certify that the arrangements disclosed are the best that can be arranged for the children, or its satisfaction with them.
Since I have gone through what you should do about your children, let me attend to your worry about the family home. You say that you would want the interest in the premises to ultimately go to your children, which is what responsible and caring parents generally wish and seek to ensure. You have clearly brought up the issue of your respective interests in the premises and you say that your husband refuses to put the property up for sale.
I trust that you have done the sensible thing and that you have retained the services of an attorney-at-law, because it is not sensible to not be legally represented especially when the divorce or any issue between the parties is contentious. The house is clearly such an issue. You MUST go to a lawyer.
You are registered on the title as joint tenants, but you can ensure that you own your own share of the property and he owns his. You must ask your lawyer to move to sever the joint tenancy, so that both your interests become separate and distinct and you can, in your last will and testament, devise your one half interest (50 per cent) to your children. Then you should ensure that you continue to pay your portion of the mortgage instalments throughout the years so that your full interest is safe and a legal certainty. If your husband objects to the severance, then you should ask your lawyer to obtain a court order that the joint tenancy be severed and that you and your husband hold your registered interests as tenants-in-common.
This is the best I can do to ensure that you have all the legal information you need, and what you ought to do to protect your own interest and that of your children. Please obtain the services of a lawyer if you do not already have one, and put not only the property problem to him or her, but first and foremost yours and your children’s interests, and that they can migrate with you, so he or she can apply for the orders which would ensure that you and they obtain what you wish and hope for.
All the very best to you and your children.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
