How Jointly-Owned Property Affects Islamic Inheritance in the UK

The Two Forms of UK Property Co-Ownership

Two couples can buy the same house on the same day, with the same solicitor, and end up with fundamentally different inheritance outcomes — because of which form of co-ownership they chose.

What is a joint tenancy?

Joint tenancy is the default form of co-ownership for most residential purchases in England and Wales. All joint tenants own the whole property together rather than holding individual shares. The defining feature is the right of survivorship: when one joint tenant dies, their interest extinguishes automatically and passes to the surviving joint tenant(s) by operation of law — regardless of any will or Faraid calculation.

Under a joint tenancy, you cannot leave your share of the property to anyone in your will. The property never enters your estate.

What is a tenancy in common?

Tenancy in common means each owner holds a defined, separate share of the property. Shares can be equal (50/50) or unequal — for example, 60/40 or 70/30 to reflect different deposit contributions. When a tenant in common dies, their share passes through their estate: it can be left by will, distributed under intestacy rules, or — for a Muslim — distributed according to Faraid.

Why Joint Tenancy Conflicts with Faraid

The right of survivorship is simply incompatible with Faraid. The property never enters the estate, so Faraid never has the opportunity to operate.

The right of survivorship

Under the Law of Property Act 1925, joint tenants hold property with the right of survivorship (ius accrescendi). When one joint tenant dies, their interest passes immediately and automatically to the surviving joint tenant — not through a will, not through probate, and not as part of their estate. The transaction is invisible to Islamic inheritance law. By the time a Faraid calculation becomes relevant, the property has already changed hands.

The religious tension

Islamic scholars are unanimous that fulfilling Faraid obligations is obligatory. English law is not hostile to Muslims here — joint tenancy was designed to protect a surviving spouse’s home and was simply never conceived with Faraid in mind. Muslims who understand how the two systems interact can take practical steps to preserve Faraid compliance. Those who do not may create an outcome no one intended, and one that cannot be corrected after death.

For the wife’s full Faraid share across different family compositions, see What share does a wife receive when her husband dies? in the Mizaanly FAQ.

How to Check How Your Property Is Currently Held

You can find out in about five minutes using HM Land Registry’s online search — no solicitor needed at this stage.

The title check

Go to gov.uk/search-property-information-land-registry. Search by address. The service costs £3 per title and returns an official copy of your title register immediately.

What to look for

In the Proprietorship Register section (Part B) of the title register, look for a Form A restriction. The full standard wording reads:

“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”

• Form A restriction present — you are tenants in common. Your share will pass through your estate on death and Faraid can apply.
• No restriction — you are almost certainly joint tenants. The right of survivorship applies.

Source: HM Land Registry Practice Guide 24 (see Sources).

If your property is not searchable online

Some titles — recently completed purchases not yet registered, unregistered land, or certain agricultural titles — may not appear in the online search. In that case, contact the solicitor who handled your original purchase and ask them to confirm the basis of co-ownership. HM Land Registry also accepts postal applications for official copies of the register.

How to Convert Joint Tenancy to Tenants in Common

Conversion — known as severance — is simpler than most people expect. It requires a written notice, not a court order, and can be done by either owner acting alone.

The severance process

Severance operates under section 36(2) of the Law of Property Act 1925. Either co-owner can sever a joint tenancy by serving a written notice of severance on the other owner(s). The notice does not need to be agreed to — serving it is sufficient. The joint tenancy converts to a tenancy in common on the date the notice is received.

The notice should clearly state the intention to sever the joint tenancy, be signed and dated, and be delivered in a way that proves receipt. Recorded post is conventional.

Form A restriction at HM Land Registry

After severance, register the change at HM Land Registry by applying for a Form A restriction. The application is made using either Form RX1 (the general restriction application) or Form SEV (the form specifically for entering a Form A restriction, often used for severance). A solicitor will choose the correct form based on the application context. Once entered, the restriction ensures the property cannot be sold or remortgaged by a surviving sole owner without a second trustee’s involvement.

Declaration of Trust for unequal shares

If you want to hold the property in unequal shares — for example, 60/40 to reflect different deposit contributions — a Declaration of Trust prepared by a solicitor records this formally. Without one, tenants in common are presumed to hold equal shares.

What it costs

• Severance by written notice and Form A restriction registration: typically £100–300
• With a Declaration of Trust defining unequal shares: typically £200–500 total

Both parties agreeing is the straightforward case — a single solicitor instruction handles everything. Unilateral severance (one party acting without the other’s agreement) is legally valid under LPA 1925 s.36(2), but independent legal advice for each party is sensible where relationships are strained.

Update your will immediately after severance

Severance converts the form of ownership. It does not by itself create a Sharia-compliant distribution. Your will then needs to specify how your share passes under Faraid — otherwise your share falls back on the intestacy rules of England and Wales, which do not follow Islamic inheritance principles.

See Do I need a UK will alongside my Faraid calculation? in the Mizaanly FAQ.

Common Scenarios for UK Muslim Families

Most situations fall into one of four patterns.

Scenario 1: Couple bought home as joint tenants

The most common situation. You and your spouse purchased as joint tenants — likely the default offered by your conveyancing solicitor — and want your property distributed according to Faraid when either of you dies.

What to do: Sever the joint tenancy, file the Form A restriction with HM Land Registry, and update both wills to specify Faraid distribution. A solicitor handles all three steps in a single instruction.

Scenario 2: Property held in one spouse’s name only

There is no joint tenancy — you are the sole registered owner. The right of survivorship is not the issue here.

What to do: Ensure you have a valid UK will distributing the property according to Faraid. Without a will, the intestacy rules of England and Wales apply, which do not follow Islamic inheritance principles — your heirs under Faraid may receive significantly different amounts than your wishes.

Scenario 3: Property held with siblings or parents

Multiple family members on the title — common in shared purchases or inherited properties.

What to do: Check the title register (see Section 3 above). If held as joint tenants, discuss severance with all owners. A Declaration of Trust should record each person’s contribution and defined share clearly to prevent disputes.

Scenario 4: Buy-to-let or investment property

Multiple owners are more likely to have been advised to hold as tenants in common at purchase — unequal contributions are common in investment properties — but this is not guaranteed.

What to do: Check the title register regardless of what you were told at purchase. Verify that shares are correctly documented in a Declaration of Trust if they are unequal.

Mortgage and Practical Considerations

Severance is a legal change in the form of ownership — it is not a new transaction. This distinction matters for tax, mortgage, and registration purposes.

Your existing mortgage

Severance does not discharge or alter your mortgage obligations. Both borrowers remain jointly and severally liable for the full debt regardless of how the beneficial interest is held. Most modern residential mortgage deeds do not restrict the form of co-ownership. This is uncommon but worth checking your specific mortgage deed — particularly for older mortgages, buy-to-let products, or commercial property finance.

Capital gains tax

Severance does not trigger a CGT event. You are changing the form in which you hold the property, not disposing of any beneficial interest. No gain is realised and no CGT is payable on the severance itself.

Stamp duty land tax

No SDLT is payable on severance. There is no transaction and no consideration changes hands.

Notifying your lender

You are not legally required to notify your lender, but sending a courtesy copy of the severance notice and Form A restriction confirmation is good practice. It keeps lender records accurate and prevents complications at any future remortgage.

Inheritance tax interaction

Under joint tenancy, your share passes outside the estate — IHT does not apply to that property, but neither does the spousal exemption (there is nothing in the estate to exempt). Under tenants in common, your share enters your estate on death. If left to a UK-domiciled spouse or civil partner, it qualifies for the unlimited spousal IHT exemption. If distributed to children or other heirs under Faraid, it uses your available nil-rate band. For larger estates this interaction has real tax consequences — specialist advice is essential before structuring.

What Happens If You Do Nothing

If you die as a joint tenant without severing, the outcome is fixed and cannot be revisited.

The right of survivorship takes effect at the moment of death. The property passes to the surviving owner automatically — outside your estate, outside your will, outside Faraid. Any provision in your will that refers to the property is overridden. A will cannot direct property that has already passed by survivorship.

The worked example in Section 2 is concrete: a £400,000 family home held as joint tenants passes entirely to the surviving spouse. Under Faraid, the wife’s share would have been £50,000 and the children would have shared £350,000. With joint tenancy intact, the children receive £0 from the property — not through malice, but because no action was taken in time.

Islamic scholars are unanimous that Faraid is obligatory, not advisory. The ability to structure your affairs to fulfil those obligations exists — but it requires deliberate action before death, not after.

The steps to fix this are straightforward, one-time, and affordable. The consequences of not acting are permanent — they cannot be unwound by a will, by family agreement after death, or by any later action.

After Severance — What Else You Need

Severance converts the form of property ownership. Three further steps are essential before your estate is Sharia-compliant.

A valid UK will reflecting your Faraid distribution

Your property share is now in your estate — but without a will, it passes under the intestacy rules of England and Wales, not Faraid. Your will must specify how your share is to be distributed according to your Faraid calculation. Mizaanly’s calculator produces a Solicitor Instruction Letter that your solicitor can use to draft a Sharia-compliant will. See Do I need a UK will alongside my Faraid calculation? and What happens if I die without a will? in the FAQ.

Other assets that bypass your estate

Property is not the only asset that can sidestep your estate. Joint bank accounts pass by survivorship in the same way as joint tenancy property — your co-holder inherits automatically regardless of your will. Pension death benefits are typically paid at the discretion of the scheme trustees, not through your estate, making them unavailable to Faraid distribution unless you nominate your estate as the beneficiary. Life insurance policies written in trust also bypass probate entirely.

A complete Faraid review should cover all of these, not just the property title. See What about pensions and life insurance in Islamic inheritance? in the FAQ.

Review regularly

Review your will, property ownership structure, and beneficiary nominations whenever your circumstances change — and at minimum every three to five years, plus immediately after any major life event such as marriage, divorce, birth of a child, or the death of a beneficiary.

Frequently Asked Questions about Property and Faraid

These questions address property-specific scenarios not covered in the main Mizaanly FAQ.

Can my children claim my share of the property if I die before severing?

Under English law, the property passes to the surviving joint tenant at the moment of death by operation of law. Your children have no automatic claim against the property itself — it is no longer part of your estate. If your children were dependants whom you maintained, they may have grounds for a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This is a discretionary remedy, not a restoration of their Faraid share — a solicitor would need to advise on whether it applies in your circumstances.

What if my spouse refuses to agree to severance?

Severance under section 36(2) of the Law of Property Act 1925 is a unilateral right. You do not need your spouse’s agreement. Serving written notice on them converts the joint tenancy to a tenancy in common on the date the notice is received. Refusal or silence does not prevent severance taking effect. Both parties should then take independent legal advice on updating their wills to reflect the new ownership structure.

Can I sever the joint tenancy in my will?

No — and this is a common and consequential misunderstanding. A will takes effect only on death, but the right of survivorship also operates on death. By the time a will could potentially act, the joint tenancy has already extinguished and the property has passed to the surviving owner by survivorship. A will cannot override or retroactively sever a joint tenancy. Severance must take effect during your lifetime (in legal terms, an inter vivos severance). Acting before death is the only effective route.

Does severance affect our mortgage?

Severance changes the form of beneficial ownership but does not alter your mortgage obligations. Both borrowers remain jointly and severally liable for the full debt. Most modern residential mortgage lenders do not object to severance, and many are not notified at all. Mortgage arrears do not affect the validity of severance. If you have a buy-to-let or an older commercial mortgage where deed restrictions are more common, check your specific deed or take legal advice before proceeding.

Does Faraid apply if my spouse is non-Muslim?

Under classical Faraid, a non-Muslim spouse does not inherit from a Muslim spouse — a position held consistently across all four madhabs. Your non-Muslim spouse holds no fixed Quranic share. However, English law is unaffected by religion: your spouse retains full legal rights under English law regardless of their faith. The most common solution is a Sharia-compliant will incorporating wasiyyah — a voluntary bequest of up to one-third of the estate, which can be directed to a non-Muslim spouse to provide for them within Islamic legal limits. See Can non-Muslim relatives inherit from a Muslim? and How much of my estate can I leave in a wasiyyah? in the FAQ.

Can I sever the joint tenancy and still benefit from the spousal IHT exemption?

Yes. If you hold as tenants in common and your share passes to your UK-domiciled spouse under your will, the unlimited spousal IHT exemption still applies. As tenants in common you can direct part of your share to children or other heirs under Faraid, with those portions using your available nil-rate band. Severance does not remove the spousal exemption — it gives you the option to decide how your share is distributed, rather than the outcome being determined automatically by survivorship.