Generally speaking, if you hold property with your partner or spouse, there’s two ways that title in a property may be held:-
- as tenants in common (where each of you have a distinct and separate portion of the title, for example a one-half interest each, or a two-thirds/one-third interest respectively); and
- as joint tenants (where each of you own an entire property together, and you don’t have specific separate interests as such).
If you’re not sure – there’s a quick, easy and relatively inexpensive way to ascertain how your interests are registered on the title of a property, and you should speak with your legal representative about undertaking a title search with the Department of Natural Resources and Mines.
If it is the case that you hold your property interests as joint tenants, in the event either of you were to pass away, then the entire property passes to the other surviving joint tenant (regardless of what you might have said should happen in your will). This can, for obvious reasons, be a cause for significant concern if:-
- you’re yet to start (or you’re in the midst of) property settlement negotiations; and
- property settlement proceedings have not been commenced.
If you both already hold your interests in a property as tenants in common, then there is no automatic transfer of your interest in the property to the other owner in the event of death. In fact, you can deal with your specific interest in the property pursuant to your will. Be conscious though that if your property settlement hasn’t been finalised formally, your former partner or spouse may apply to the Courts to have a portion of your estate in those circumstances.
It’s for these reasons that it is generally preferable to:-
- change any existing joint tenancy arrangements, to a tenancy in common arrangement as soon as possible following separation; and
- give priority to the early resolution of your property settlement dispute rather than leaving matters be.