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.

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

HAVE YOU CONSIDERED ALTERNATIVE DISPUTE RESOLUTION?


Kimesha Govender

Tired of long endless court proceedings? Why not opt for a quicker, less stressful and cheaper alternative? Alternative dispute resolution (“ADR”) refers to a process in which an impartial third party assists those in a dispute to resolve the issue at hand. The most common types of ADR are negotiation, mediation, conciliation and arbitration. The outcomes of these procedures are binding on the parties involved.

Negotiation refers to a process in which the parties communicate with each other directly to resolve an issue and what action should be taken to either manage or ultimately resolve the dispute between them. Negotiations may be used to resolve existing problems or prevent future disputes from arising. Negotiations are voluntary and no party is forced to participate in the negotiation process. The parties involved in this process are free to either accept or reject the outcome of the negotiations. Parties may choose to participate themselves in negotiations or choose to get someone to represent them. There are no prescribed rules in negotiation, therefore the parties may make their own rules. This procedure is the most flexible and the outcome of a negotiation only binds those parties that were involved in this procedure.

If the issue cannot be resolved through negotiation parties may then turn to mediation. Mediation refers to a process in which an independent third party, known as the mediator, assists parties in dispute to resolve their problems by identifying the issues, developing options and considering alternative measures in order for them to reach an agreement. The role of the mediator is to ensure the parties know the rules and guidelines of the mediation process, ensures each party has a chance to view their concerns as well as clarifying issues and suggesting ways of discussing the dispute. The mediator however may not take sides, make decisions or suggest a solution to the parties. Parties involved in mediation proceedings may seek legal advice regarding their rights and responsibilities prior to the mediation proceedings. Should a party’s legal representative be present at the proceedings, they should not play an active role.

Conciliation on the other hand allows an independent third party, known as a conciliator, to assist the parties in identifying the issues, develop options as well as considering other options in trying to reach an agreement. The conciliator may have professional expertise in a specific field and may therefore provide advice and options to resolve the dispute. However the conciliator may not make a judgment or decision regarding the dispute. Parties may have legal representation present at the conciliation however some conciliation proceedings do not require lawyers to participate. Conciliation is often an option if parties could not come to an agreement during the mediation proceedings.

Arbitration refers to the process in which parties present arguments and evidence to an independent third party, known as the arbitrator. A matter will often be referred to arbitration if the parties could not come to an agreement during the conciliation proceedings. Arbitration is useful if the issue at hand is rather technical, or if the parties seek confidentiality which cannot be obtained in an open court. Arbitrations are much more formal and structured compared to mediation or conciliation. Arbitration is similar to that of a court proceeding as the final decision made by the arbitrator is binding on the parties. However, the parties involved in the arbitration proceeding need to agree before the proceeding that the arbitrator’s decision will be binding and enforceable on them. Should the parties not be satisfied with the decision made by the arbitrator they are allowed to appeal the matter to a court or a higher authority. Parties may have legal representation at the arbitration proceeding.

As discussed above it is clear that people do have other cheaper and quicker options in resolving their issues should they opt not to use the traditional methods.

HIGH COURT RULES: AMENDMENTS EFFECTIVE FROM 1 JULY 2019


Ané Kotzé

This article discusses the amendments to Rules 32 and 36 of the High Court Rules effective from 1 July 2019 and compares the current position with the position prior to the amendments. The article further gives commentary on the effect of said amendments and possible benefits that will come from it.

Rule 32

Rule 32(1) determines the following: “The Plaintiff may, after the Defendant has delivered a plea, apply to court for summary judgment on each of such claims in the summons as is only:
On a liquid document;
For a liquidated amount in money;
For delivery of specified movable property;
For ejectment.”

Previously, an application for summary judgment had to be brought within 15 days after the notice of intention to defend was delivered, now it is after the plea was delivered. The effect of this amendment is that a trial will be run on papers by way of the application procedure.

The upside to the new rule is that by allowing for the plea to be filed, summary judgment applications where the Defendant has a bona fide defence will be avoided, because the Defendant is now given the opportunity to file his plea before the Plaintiff can apply for summary judgment. Previously, if the Defendant had a bona fide defence, it would have been set out in the opposing affidavit to the summary judgment application, which would later be duplicated in the Plea if the summary judgment application was not successful.

Rule 32(2)(b) determines the following: “The Plaintiff shall in the affidavit referred to in sub-rule 2(a) verify the cause of action and the amount, and identify any point of law relied upon and the facts upon which the Plaintiff’s claim is based, and explain briefly why the defence as pleaded does not raise any issue for trial.”

Previously the rule indicated that you had to state that there is no bona fide defence to the action and that the Plaintiff merely delivered a notice of intention to defend for the purpose of delaying the proceedings. Because the plea will now be delivered by the time the Plaintiff applies for summary judgment, the Plaintiff will be able to specifically attack the defence contained in the plea. Previously, the Plaintiff would not have had this information when applying for summary judgment.

Rule 32(3)(a) now determines: “The Defendant may give security to the Plaintiff to the satisfaction of the court for any judgment including costs”. Previously security was given to the registrar.

Rule 32(3)(b) now determines that the Defendant must satisfy the court by an affidavit which shall be delivered five days before the day on which the application is to be heard. Previously the affidavit had to be delivered before noon on the court day but one preceding the day on which application is to be heard. This is also a positive change, as it will give the judge hearing the matter a chance to properly peruse the papers and go to court prepared on the day of the hearing of the summary judgment application. It will also give the Plaintiff’s attorney the opportunity to see well in advance on what basis the Defendant is opposing the summary judgment application.

Rule 36

Rule 36(2)(a) determines that any party requiring another party to submit to a medical examination shall deliver a notice to such other party. Previously the rule only provided for “such examination”, now it is specifically stating “medical examination”.

Rule 36(8) now determines that any party causing an examination to be made in terms of sub-rules 1 and 6 shall:

  1. a) cause the person making the examination to give a full report in writing, within two months of the date of the examination or within such other period as may be directed by a judge in terms of rule 37(8) or in terms of rule 37(A)b; and
  2. b) within five days after receipt of such report inform all other parties in writing of the existence of the report and upon request immediately furnish any other party with a complete copy thereof.

Previously no timeline was set out for the person conducting the examination to give a report and the party obtaining the report did not have to disclose the report to the other party unless requested to do so. Now it is compulsory to disclose the report within five days of receiving it. This is a positive change in the sense that it will enable opposing parties to see on what the Plaintiff bases the claim long before the matter goes to trial, which will, in turn, enable the opposing party to respond properly to the Plaintiff’s case, or to settle the matter if the Defendant realises that it would not be worthwhile to keep defending the matter.

Rule 36(9)(a) now reads as follows: “Where the Plaintiff intends to call an expert, the Plaintiff shall not more than 30 days after the close of pleadings, or where the defendant intends to call the expert, the defendant shall not more than 60 days after the close of pleadings, have delivered notice of intention to call such expert”.

Rule 36(9)(b) now reads as follows: “In the case of the Plaintiff not more than 90 days after the close of pleadings and in the case of the Defendant not more than 120 days after the close of pleadings, such Plaintiff or Defendant shall have delivered a summary of the expert’s opinion and the reasons therefor, provided that the notice and summary shall be delivered before a first case summary management conference held in terms of rule 37A”.

Previously the Plaintiff had to disclose fifteen days before the hearing that the Plaintiff intended to call an expert witness. The Plaintiff had to deliver not less than ten days before trial a summary of the expert’s opinion.

The benefit of this new approach is that parties are forced to see to it that their case is in order and the opposing party can see what case they have to meet long before the case goes to trial, which will avoid unnecessary delays close to trial, and will hopefully have the effect that more cases will be settled before trial, as parties are in a better position to examine whether it will be worthwhile going ahead with the trial, given the evidence disclosed by the other party.

Rule 36(9)A

This is a new clause reading as follows: “The parties shall endeavour, as far as possible, to appoint a single joint expert on any one or more or all issues in the case; file a joint minute of experts relating to the same area of expertise within 20 days of the date of the last filing of expert reports”.

The intended effect of this clause is that it will decrease the number of expert witnesses to be called and testifying about the same aspect. Thus, parties need to agree beforehand which expert witness they are going to call on a certain aspect. What will happen when parties are unable to agree on an expert witness is still to be determined, but in all likelihood, judicial guidance by the judge will be needed in such an instance.

Rule 36(10)(a)

The amended paragraph determines the following: “No person shall, save with the leave of the court or the consent of all the parties, be entitled to tender in evidence any plan, diagram, model or photograph unless such person shall not more than 60 days after the close of pleadings have delivered a notice stating an intention to do so, offering inspecting of such plan, diagram, model or photograph.”

This again has the effect that parties need to see to it that their case is in order and disclose the evidence they are going to use at trial long before a trial takes place. Parties will now have to get all the evidence they want to present to the court in order relatively shortly after the close of pleadings.

Conclusion

The purpose of the amendments is clearly to try to speed up the process and place parties in a better position to decide whether they want to consider the settlement of the matter because they will have all the facts before them quite shortly after the close of pleadings. The summary judgment amendments will also place parties in a better position to analyse whether they will be successful with a summary judgment application or not. Hopefully, the new rules will have a positive effect on full court rolls and will ensure a faster conclusion of matters, which will be in the best interest of all parties litigating in the High Court.

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.

About the author