How does divorce affect transfers in the case of joint ownership?
The end of a marriage can result in several administrative challenges, not least of which is tackling the joint ownership of immovable property. And while divorce can be a traumatic and emotional experience, with the proper legal advice, the transfer of ownership doesn’t need to be.
So, what are the implications of divorce on transfers involving joint ownership? Ultimately, these are dependent on the divorce order, the accompanying settlement agreement, and whether the parties were married in or out of community of property.
Married in community of property
When parties who were married in community of property get divorced, each party is entitled to one-half share in the immovable property as a result of the division of the joint estate. However, the manner in which the property will be transferred depends on the settlement agreement and typically dictates that one of the spouses acquires the full property. In such a situation, the spouse acquiring full ownership of the property may simply apply to the Registrar of Deeds to endorse the title deed, thereby transferring the half share of the ex-spouse. The party acquiring full ownership of the property will also be required to compensate the party losing ownership to the value of the party share in the property.
Married out of community of property
Parties who were married out of community of property are already joint owners of the immovable property, given that they have separate estates. In most instances, however, parties will agree that one obtains full ownership of the property in their settlement agreement. When this happens, a formal transfer will occur to transfer full ownership to one spouse. The party acquiring full ownership of the property will compensate the party losing ownership to the value of the party share in the property.
Challenges
What is clear from the above is that in the case of divorce, the deciding factor when it comes to transferring immovable property is what is contained in the divorce order and settlement agreement. As a result, it is vital that parties deal with immovable property properly in their divorce order by stating who acquires the property, if and how compensation of the transferring share is to occur, and who is liable for the cost of transfer. Should the property and transfer thereof not be contained in the divorce order, unnecessary delays and costly litigation may ensue.
Written by Wessel de Kock
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