Hunter v Babbage [1994] 2 FLR 806, ChD
Severance of a Joint Tenancy by Agreement
Facts
A husband and wife owned their matrimonial home as joint tenants. When their relationship broke down, the couple began divorce proceedings. They agreed between them that the house however would not be split equally between them, but would instead be unequally distributed. An order for ancillary relief had been granted, and an order of consent drawn up for the sale of the matrimonial home. However, no agreement had yet been reached on the particular share of the home that each party was to have. Before this could be completed, but after the agreement had been made, the husband died. The wife wished for the joint tenancy to have remained un-severed so as to exercise her right of survivorship.
Issues
Whether or not the joint tenancy had been severed by the agreement to split the property unequally. If so, how was the court to distribute the value of the property considering that no agreement had yet been reached on this point.
Decision/Outcome
The joint tenancy had been severed by the agreement to divide the parties’ beneficial interests in the matrimonial home unequally. The wife was not therefore entitled to the right of survivorship and the husband’s share of the property passed to his estate. Because the draft consent order for the shares of the beneficial interest to be split unequally had not yet been finalised by the court, the court could only grant the tenants in common equal shares in the property. Therefore, the wife was only entitled to half of the beneficial interest in the home despite the existence of a draft order which would have provided otherwise had it been finalised.
Updated 21 March 2026
This case summary remains accurate. Hunter v Babbage [1994] 2 FLR 806 is a first-instance Chancery Division decision and the legal principles it illustrates — that a joint tenancy can be severed by a mutual agreement to deal with the property inconsistently with joint ownership, and that an incomplete or unfinished consent order cannot alter the default equal division between tenants in common — continue to represent good law. The broader rules on severance of joint tenancies, including by mutual agreement, remain governed by the principles set out in Williams v Hensman (1861) and are unchanged by subsequent statute or appellate authority. No legislation has altered the relevant rules on severance since this case was decided. Readers should note that this is a first-instance decision of limited precedential weight and that the law of co-ownership and severance more generally should be read alongside cases such as Burgess v Rawnsley [1975] Ch 429 and the relevant provisions of the Law of Property Act 1925 (as amended and currently in force). The article remains fit for purpose as a student case summary.
