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Published: Fri, 12 Oct 2018
Nielson-Jones v Fedden  Ch 222, ChD
Severance of a joint tenancy in equity in a matrimonial home.
A woman and her husband were the legal and beneficial joint tenants of a matrimonial home. Upon their separation, the spouses both agreed and signed a memorandum authorising the husband to sell the home in order to use the proceeds for the purchase of his separate home. The husband died before the sale proceedings had been completed. The wife claimed that, on his death, she held the sole beneficial interest in the matrimonial home.
The question arose as to whether the memorandum had the effect of severing the spouse’s joint tenancy in equity of the matrimonial home so as to entitle each party to one half of the sale proceeds.
Firstly, the Court held that joint tenancy in equity in a home can only be severed by irrevocable actions in order to clearly effect that each party is to be solely entitled to a respective share thereafter. On the facts, the memorandum cannot be constructed as a severance as it is ambiguous as to the division of interests and can be interpreted to apply solely to the proceeds of sale. Secondly, the Court held that a joint tenancy in equity cannot be severed by a mere intention to sever. On the facts, the intention to sever was not sufficient to sever the joint tenancy, particular as the subsequent conduct and negotiations of the parties did not constitute irrevocable actions regarding a mutual severance. Accordingly, the Court held that the memorandum nor conduct constituted a severance of the joint tenancy and, upon the husband’s death, the wife, by survivorship, became beneficially entitled to the whole of the matrimonial home.
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