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What happens to immovable property after divorce?

MAIN IMAGE: Roy Bregman, Bregman Moodley Attorneys

Roy Bregman

The big question when a divorce is pending and a house or other property is part of the settlement plans, is when does one become the owner of a fixed property in terms of a divorce settlement agreement.

For example, the settlement agreement may provide that within seven days of the grant of a decree of divorce the owner (husband) shall cause his half share of a specific property to be transferred to his wife.

The date of acquisition of the half share would be the date of the court order and not the date of the agreement between the parties regarding the transfer of the half share. Upon the granting of the order, the wife only acquires a personal right to compel transfer to her of her husband’s half share.

This right protects her interest in the property against any subsequent claims against her husband’s creditors until it is formally transferred by way of deed of transfer or endorsement into her name.

Section 16 of the Deeds Registries Act sets out how real rights (ownership) of land are transferred:

Save as otherwise provided in this Act or in any other law the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar…

Ownership in land requires an act of registration in the Deeds Office. There are exceptions to this general rule: the acquisition of ownership through succession, prescription or of an interest in land by virtue of a marriage in community of property (e.g., if the husband owned property and subsequently married in community of property, his wife automatically becomes co-owner of that property, and no act of registration is required in terms of the Deeds Registries Act).

It is also possible to amend the divorce order or settlement agreement by executing an addendum to such agreement. The courts have previously ruled that the consent of the court is not a prerequisite to amend the stipulations of the divorce order regarding the redistribution of assets (Ex parte Boshi and Other 1979 (1) SA 249 and Ex parte Herman 1954(2) 636 (O) and Chief Registrars Circular 21 of 1990).

In a case where settlement / addendum in relation to property is only reached after the formal court proceedings are finalised, the date of acquisition will be the date that the subsequent settlement is reached, provided that any exemption of transfer duty will only be afforded where the settlement agreement, entered into ex post facto the divorce, has been made an order of court per a recent ruling by SARS.

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