First identify the matrimonial property regime
Whether the spouses are married in community of property, out of community with accrual or out of community without accrual can materially affect the patrimonial outcome. The title deed alone does not answer every divorce entitlement, and the antenuptial contract should be reviewed where one exists.
Three common outcomes for the family home
- Sale to a third party.The property is sold, the bond and transaction costs are settled and the net proceeds are dealt with under the settlement or order.
- One spouse retains the property.The order or settlement creates the entitlement, but transfer and bank requirements still have to be completed.
- Temporary continued co-ownership or occupation.This requires precise terms on occupation, bond payments, rates, levies, insurance, maintenance, sale triggers and future transfer.
The bank is not automatically bound by the spouses’ private arrangement
A spouse cannot assume that a divorce settlement removes their liability under a mortgage bond. If one spouse is to retain the property, the lender may require a fresh affordability assessment, substitution, cancellation or a new bond arrangement before the exiting spouse is released from contractual liability.
What should a property clause cover?
- the exact property description and registered owner;
- whether the property is sold or transferred to one spouse;
- who pays the bond, rates, levies, insurance and maintenance pending transfer;
- occupation and any occupational compensation;
- the timing and cooperation required for transfer;
- how transfer costs, tax or other transaction charges are dealt with; and
- what happens if finance or transfer cannot be completed.
Divorce and conveyancing must connect
Once the divorce order is granted, the property consequence may require a separate conveyancing instruction. Our property transfer attorneys page explains the Deeds Office stage, while the South African divorce process guide explains how the settlement reaches a court order. For representation, see our divorce attorneys.
Consider the home alongside debts and pension interests in divorce before agreeing on the overall financial settlement.