Ownership of Immovable Property in Relation to Divorce

Ownership of Immovable Property in Relation to Divorce

rder, especially when married in community of property. Marriage in community of property will be the main matrimonial regime highlighted in this article.

Author: Abbaas Kamalie

When spouses get divorced, immovable property is always considered and specifically addressed in the divorce order, especially when married in community of property. Marriage in community of property will be the main matrimonial regime highlighted in this article.

By virtue of being married in community of property, each spouse is entitled to a half share of the entire estate owned by the spouses. If one spouse acquired a property before marriage and subsequently got married in community of property, the other spouse becomes a co-owner thereof upon registration of their marriage.

With that being said, upon divorce, how the joint estate and immovable property is dealt with may be determined by the spouses, whereby they enter into an agreement (known as the Consent Paper in a Divorce Order) and which is made final by the court in the Divorce Order.

Bear in mind that should spouses be unable to come to an agreement which is best suited for both of them or in the event of a contested divorce, the court has discretion to decide on the division of the joint estate. The divorce order may stipulate to whom the property is awarded to, the purchase price, amount of consideration to be paid, the time frame for the property to be sold etc.

It is important to note that a Divorce Order simply addresses the above factors. The immovable property will still need to be formally transferred and registered at the Deeds Office.

Transfers in terms of Section 45 of the Deed Registries Act are only applicable where parties were married in community of property. The transfer differs to a conventional sale to a third party.

When one spouse lawfully acquires the share of the immovable property of the former spouse, Section 45bis(1)(a) of the Deed Registries Act allows for transfer of immovable property by means of an Endorsement. Here the immovable property is awarded to one spouse and should be reflected as such on the title deed. This is a formal application made by the spouse to the Registrar of Deeds in order for him/her to receive full ownership of the property as per the Divorce Order.

If a Divorce Order stipulates that an immovable property is to accrue to both former spouses in equal shares in terms of the division of the joint estate, this is also dealt with by means of an endorsement. This endorsement is to be reflected as such on the title deed in terms of Section 45bis(1A) of the Deed Registries Act. Here the property will be owned by both parties in equal undivided shares.

When spouses come to a different decision regarding the transfer of the immovable property, after a Divorce Order has been granted, a settlement agreement will need to be drafted highlighting the details thereof. Such settlement agreement may alter the type of transaction required to effect transfer of ownership.

Should the spouses choose to sell the immovable property or the Divorce Order stipulates the sale of the property to a third party, both spouses will need to sign the transfer documents to effect transfer to the new owner.

In order to assist with the transfer of immovable property after divorce, our Conveyancers will request a copy of the Divorce Order. It is essential that we are provided with the Divorce Order as it will stipulate how the immovable property will be dealt with. If a Divorce Order is lost, it can be obtained from the court that granted it. Should you require assistance with the transfer of immovable property after divorce, we can certainly assist.

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