Divorce – The effects on wills and tenancy

Consider updating your will 

Often when a couple separate and go through the divorce process, the issue of whether they have made wills or need to make a will is often overlooked. If you do not have a will in place, or you have one that has not been updated in a while, then now is a good time to make proper arrangements. 

If you have not made a will before your death, the law steps in and assumes that you intend to leave everything to your spouse. If you are seeking to separate, this is unlikely to be your intention, so it is important that you set out exactly what it is that you do what to happen to your assets should you pass away. 

If you do have a will, it is likely that your spouse is included within it and for the reasons set out above, it is good practice to get your intentions updated. If your spouse is not included within your will but your will was made before you married, it is important that you take specialist advice as it may be the case that irrespective of your wishes, there is an overriding assumption that when you married, you intended for everything to go to your spouse. 

Severing your tenancy and lodging a home rights notice 

When you decide to start the divorce process, it is important that you establish how the properties are held. The property may be in your sole, or in the joint names of you both. 

If there are jointly owned properties, these can be held at Land Registry in one of two ways, either as a Joint Tenants or Tenants in Common. However, if the properties are held, it is important to obtain advice as to whether any steps need to be taken to protect your interest. 

Steps may include: 

  1. Lodging a Home Rights Notice at the Land Registry if the property is the former matrimonial home and is held in the name of your spouse only. This will have the effect of formally notifying any potential purchasers of your beneficial interest in the property. It will also prevent your Spouse from selling the family home. 
  2. Severing the joint tenancy – this will ensure that you can both leave your respective shares in the property to who you wish (rather than each other).

For more information or advice, you can contact a member of the family law or wills and estates team.  

Author: Shamila Hussain, family law.