Marshall v Marshall

Husband and wife joint tenants of matrimonial home – Marriage dissolved – Agreement to market property – Notice of intention to sever joint tenancy prepared but not served – Property remaining registered in joint names at time of wife’s death – Application for declaration of severance – Whether intention to sever – Application dismissed – Court of Appeal dismissing appeal In 1991 the defendant and his wife (M) purchased a property at 13 Sampson Road, North Walsham, Norfolk, which was conveyed to them as joint tenants. Two years later, however, they became estranged and the defendant petitioned for divorce. Subsequently, the parties’ solicitors corresponded and agreed to place the property on the market. On January 5 1994 M was advised by her solicitors on her rights to effect a unilateral severance of the joint tenancy and a notice was prepared but not served. On February 2 1994 the decree absolute was granted. At M’s death, on March 27 1994, the property remained registered in her and the defendant’s joint names. The plaintiff, the defendant’s and M’s son, sought a declaration that the joint tenancy had been severed. The county court refused the application finding that there had been no severance and that the property was vested in the defendant by virtue of survivorship. The plaintiff appealed submitting, first, that the agreement to put the property on the market effected a severance and, second, that it could be inferred from all the circumstances that there had been a common intention to sever. Held The appeal was dismissed. 1. The parties had only agreed to take certain steps to convert the property into proceeds for sale. There had not been an express agreement as to how any proceeds were to be divided and it was not possible to infer from the agreement to sell that the proceeds would be divided in any particular way at all. Therefore, since there had only been an express agreement to put the property on the market, and no express agreement for the division of proceeds, nothing had occured to effect a severance: Hunter v Babbage [1994] 2 FLR 806 distinguished 2. That conclusion was reinforced by the evidence of the discussion between M and her solicitor on January 5 1994 when she had been advised as to her rights for unilateral severance of the joint tenancy and a notice had been prepared. The facts that service of a notice had been discussed, that M had requested more time and no further steps were taken, led to the inference that there remained on her part a lack of intention to sever the joint tenancy. Andrew Lindqvist (instructed by Leathes Prior, of North Walsham) appeared for the appellant; Lawrence Caun (instructed by Hansell Stevenson, of Norwich) appeared for the respondent. Sarah Addenbrooke, barrister