Immovable Property and Divorce

by Robyn Shepherd

Introduction

According to the divorce order transfer of the immovable property, will take place by an endorsement per Section 45 of the Deeds Registries Act.

The spouse who received a total share of the property will apply to the Registrar of Deeds to endorse the current title deed, thereby displaying only them as owner.

Whereby a divorce order stipulates that immovable property is to be divided equally, both parties will apply to the Registrar of Deeds resulting in an award to both parties having an undivided share in the immovable property. When parties are married out of community of property, and the divorce order does not mention the immovable property, the spouse who has ownership will retain such ownership. Furthermore, in Section 9 (1) (k) of the Transfer Duty Act, no transfer duty will be payable for the acquisition of the property if the other spouse had acquired the property before the date of marriage. Section 9 (1) (i) of the Transfer Duty Act, no transfer will be payable for the acquisition of the property whereby a divorced spouse acquires the sole ownership in the whole or any portion of property registered in the name of his or her divorced spouse where that property or portion is transferred to that divorced spouse as a result of the dissolution of their marriage or union.

Conclusion

Additionally, where the divorce order requires parties to sell the property, the purchaser will then be liable for the transfer duty payable pertaining to the immovable property and the proceeds thereof will be distributed in terms of the divorce order.

Robyn Shepherd

Legal Specialist Family Law and Civil Litigation

SchoemanLaw Inc

www.schoemanlaw.co.za