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When you own property (houses, land and buildings), there are two different ways those properties are legally held.
Your lawyer might have explained this you and you might know whether you hold your property as "Joint Tenants" or "Tenants in Common", or may not remember which way you hold legal title to your property.
If you do not know how legal title to your property is held, you can do a Title Search or obtain a copy of your Title Transfer document or Land Title Registration Document, which will tell you whether your property is held as "Joint Tenants" or "Tenants in Common".
It is important how your property is legally held, as that determines what happens to that property after you die and what steps you might need to take if you have separated.
If property is owned in joint names, it is common, particularly for married couples, to own the property as “joint tenants” rather than as “tenants in common”. This can also often be the case for de facto couples.
If property is owned as “joint tenants” and you die, then the deceased person’s share in the property automatically passes to their former spouse (other joint tenant) regardless of what their Will says.
Property owned as “tenants in common” passes in accordance with what the deceased person says in their Will, subject to the effect of Divorce if a Divorce Order has been issued.
It is generally recommended that a person who has separated, not only make a new Will as soon as possible after separation, but that they arrange to sever the joint tenancy of any properties held as “joint tenants”, so that if they die, their interest in that property will pass in accordance with their Will, or if there is not a valid Will, with the laws of intestacy that will apply.
If the joint tenancy is severed, then the property will continue to be held in equal shares as “tenants in common” which should mean that your interest in the property will not automatically go to your former spouse if you die after you have separated.
You should also read our fact sheet about how Separation affects your Will, family after your death, Superannuation and Life Insurance.
A useful starting point after separation is our fact sheet Separation: What you need to know & where to get free help.
You should also read our fact sheet How does Separation & Relationship Breakdown affect my Will, family after your death, Superannuation & Life Insurance.
Having lists of things you need to do and can easily follow can be very helpful. See the following checklists:
You need to make sure you know what time limits might apply to you which are explained in our fact sheet Separation time limits after Relationship Breakdown.
You might like to read our fact sheet The Stages of Separation: How it will affect you & your former partner which may help you understand what you or your partner are going through.
Michelle Beatty, Senior Lawyer
Other Questions answered in the Separation & Relationship Breakdown Section
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