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Harris v Goddard [1983] 1 WLR 1203, CA

Spouses – Joint Tenants – Severance – Mutual Intention – Divorce Proceedings

Facts

Mr and Mrs Harris were married and were joint tenants of their matrimonial home.  As their relationship deteriorated, Mrs Harris petitioned for divorce, and sought an order under s24Matrimonial Causes Act 1973 that an order be made to sever the joint tenancy in the matrimonial home.  Prior to the hearing on this issue the husband was killed in a car crash.  The wife claimed that despite the prayer in the pleadings seeking an order of this nature, the joint tenancy had not yet been severed at the time of her husband’s death and so she was entitled to the right to survivorship of the joint tenancy.

Issues

Whether the wife’s pleadings that the court sever the joint tenancy under s24 Matrimonial Causes Act 1973 effectively severed the joint tenancy or not.  Whether a prayer of petition could itself sever a joint tenancy.

Held

The joint tenancy had not been severed.  The inclusion of a prayer for severance in the wife’s pleadings could not sever a joint tenancy.  A written notice of an intention to sever a tenancy could be effective to sever a tenancy, but only if it was to take effect immediately as was required by s36(2) Law of Property Act 1925.  In this case the inclusion of a prayer in the petition for the court to exercise its discretion under s24 Matrimonial Causes Act 1973 to distribute the property was simply a request that the court do so.  This was to be done at a hearing, and was not therefore to take effect immediately.  As such, the joint tenancy had not been severed.


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