• In the case of Harris v Goddard 1983 3 all er 242 it was found that a notice to sever is served pursuant to s.36(2) Law of Property Act 1925 if there is an intention to bring about the wanted result immediately.

Facts of the Case

  • H and his wife were joint tenants in equity of a freehold property which they bought in 1978 in their joint names, and which was the matrimonial home and the place where H. carried on his business.
  • In 1979, the marriage broke down.
  • In June of the same year, the wife left H.
  • On December 28th, 1979, her solicitors served a petition for divorce on H. alleging irretrievable breakdown of the marriage.
  • The prayer of the petition in paragraph 3 asked “that such order may be made by way of transfer of property and or variation of settlement of property or variation of settlement in respect of the former matrimonial home… and otherwise as may be just”.
  • Three days before the date of the fixed hearing on august 18th 1980, H was injured in a car accident and lay in in a coma until his death on September 24th.
  • In April of 1981, the claimants, H’s executors, issued a writ against the trustees for sale of the property and the wife claiming inter alia, a declaration that the equitable joint tenancy subsisting between H. and his wife in respect of the matrimonial home had been validly and effectively severed prior to H’s death to create an equitable tenancy in common in equal shares between them.
  • They relied on paragraph 3 to the divorce petition as constituting a notice of severance within the proviso to section 36(2) of the Law of Property Act 1925. They also purported notice of severance served on the wife on August 22nf 1980, which the trial judge found to be invalid as it was served without authority
  • The wife denied that the beneficial joint tenancy had been served prior to the death of H and counterclaimed for a declaration to that effect.
  • The judge dismissed the action and made a declaration as sought in the counterclaim.

Issues in Harris v Goddard 1983 3 all er 242

  • Did the petition sever the joint tenancy

Held by Court of Appeal

  • Appeal dismissed; the joint tenancy was not severed

Lawton LJ

  • The appeal was dismissed with the tenancy not being severed as when a notice in writing of a desire to sever is served pursuant to the LPA, it must demonstrate an intention to bring about the wanted result immediately.
  • “That a notice in writing of a desire to sever a joint tenancy pursuant to section 36(2) of the Act of 1925 took effect forthwith and therefore it had to evince an intention to bring about the desired result immediately; that, further, the notice had to show an intention to bring about the consequences set out in the subsection, and since the prayer in the petition did no more than invite the court to consider at some future time whether to exercise its jurisdiction under section 24 of the Matrimonial Causes Act 1973 it did not operate as a notice of severance to sever the joint tenancy in equity; and that, accordingly, the joint tenancy had not been severed when the husband died and the wife was entitled to the whole of the fund A held by the trustees as a result of the sale of the property”. pg. 1211

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