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Property held as Joint Tenants

The Fate of Property held as Joint Tenants in the Family Court

In June 2019, the Family Court of Western Australia delivered a Decision in a case relating to a property that the parties to a marriage had acquired as joint tenants during their marriage.

By the time the Court case started, the Wife had been living in full time residential care for more than a year (while the Husband remained living in the home owned as joint tenants).  It had been a 45-year marriage.

Each of the parties to the marriage had adult children from previous relationships.

After the Family Court case was started, the Wife died.  Her son sought to continue the case on behalf of her estate.

The Wife had made a Will leaving her estate to beneficiaries other than her Husband.  However, since it was held as joint tenants, her interest in the home did not form part of her estate.

In certain circumstances, the Family Law Act gives the Family Court power to make Orders altering property interests even after the death of a party to a marriage.

The Wife’s son sought to be able to continue with the Family Court case (the consequence of which would be that it was at least possible that a partial interest in the home might be added to the Wife’s estate and become available for distribution to her beneficiaries).  The Husband sought that the Family Court case be ended (the consequence of which would be that he would keep the whole of the house as a result of the operation of the joint tenancy).

The Judge decided that the son should be allowed to continue with the Family Court case.

The facts that arose in this particular case highlight a broader issue which the Law Reform Commission of Western Australia has previously identified, namely whether it should be possible to unilaterally sever a joint tenancy in Western Australia (as is possible in certain other Australian states). The Commission recommended in favour of making unilateral severance available in WA as relatively long ago as 1994 and reaffirmed the recommendation when it looked again at the issue in 2002.

In the context of this particular case, the consequence of unilateral severance being available would have been that the Wife would have had the option at least of creating property which could then form part of her estate.  That is to say, the Wife would have at least had the option to sever the joint tenancy in conjunction with making her Will purporting to distribute to beneficiaries other than the Husband.  Perhaps in those circumstances Family Court proceedings could then have been avoided entirely.

The Decision is reported as Layton & Layton [2019] FCWA 145.  A copy of the Decision is available on the Family Court of WA website www.familycourt.wa.gov.au.

The 1994 and 2002 Reports from the Law Reform Commission of WA are available on the Commission’s website www.lrc.justice.wa.gov.au.

William Sloan I Director I Accredited Family Law Specialist

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