Joint Ownership of a Property After Divorce: What Do You Need To Know?

JOINT OWNERSHIP OF A PROPERTY AFTER DIVORCE: WHAT DO YOU NEED TO KNOW?


Nadia Burger

After a lengthy period of time, your divorce has been finalised. The property that was registered in your (and your ex-partner’s) name was awarded to you in the settlement agreement reached and it was made an order of court. But what happens now? You were awarded sole ownership of the property, but the title deed and the deeds office records still reflect that both you and your ex-partner are joint registered owners?

A formal deeds office process has to be followed to ensure that transfer takes place to reflect that you are now the sole owner. Usually, the settlement agreement will contain a clause stating which attorney must attend to the transfer. This attorney is called a conveyancing attorney and this attorney specialises in property law.

The process to obtain sole ownership of the property can be compared to the sale of a property where ownership is transferred from a seller to a purchaser. An agreement of sale is the cause for the transfer of ownership from a seller to a purchaser. In the case of a divorce, the divorce order and settlement agreement is the cause for the transfer from your ex-partner to yourself. Only a half share transfer has to be done as you already own the other half share of the property. In the case of a sale of a property, the deeds office will also require the following documents to be lodged:  A rates clearance certificate, a Home Owners Association Consent if applicable and a transfer duty receipt. But, does this mean that you have to pay transfer duty to SARS[1] as you already paid transfer duty when you and your ex-partner purchased the property a few years ago? Section 9(1)(i) of the Transfer Duty Act 40 of 1949 provides for an exemption of transfer duty when property is acquired as a result of dissolution of the marriage by divorce[2].

If, however, you decide that you no longer want the property and you would rather sell the property, this can be done by an amended agreement to the settlement agreement entered into between your ex-partner and yourself. This is possible if you have not yet taken formal transfer of your ex-partner’s half share. This amended agreement will state that you will be entitled to all proceeds of the sale and that you no longer wish to transfer the property into your own name. You will be entitled to all the proceeds because you were awarded the property in the settlement agreement which was made an order of court, and you are only amending the agreement to the extent that you want to sell the property.

This agreement to amend the settlement will have to be lodged in the deeds office as a supporting document. Both you and your ex-partner will have to sign the offer to purchase as well as all the transfer documents relating to the sale of the property because the title deed and the deeds office records will still reflect that you and your ex-partner are the joint registered owners.

Should you require any assistance and advice in this regard, do not hesitate to contact our offices.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

  • [1] The South African revenue Service.
  • [2] This exemption also applies to the surviving spouse acquiring sole ownership
About the author