Where a divorced person deals with immovable property it must most importantly be determined whether such person has the full legal capacity to deal with such property. This is usually clarified by way of the divorce order, which indicates how the court has ordered the former spouses to deal with their existing property.

A divorce agreement which has been made an order of court can be amended by the parties concerned, provided the interests of third parties are not affected by such an amendment. As such, the parties can, notwithstanding the award in the divorce agreement, decide that the property will be sold to an outside third party and enter into a sale agreement in respect of the property. This is practically done by both former spouses signing the agreement of sale, as well as the documents necessary for transfer.

However, a certified copy of the divorce court agreement must be lodged in the deeds office to enable the registrar to ascertain whether the rights of third parties are affected by such arrangement.

This series of JustAskJJR will briefly cover the various permutations that a property transfer between former spouses may take, as well as the implications regarding existing bonds registered over the property.

Marriages out of community of property

Where the property being dealt with was jointly co-owned by the former spouses and the court has made an order that the property be allocated to one of them, the transfer is affected by way of a formal half-share transfer. A transfer in terms of a court order is exempt from the payment of transfer duty.

When negotiating a divorce settlement which includes immovable property, it is always advisable to consult with a conveyancer on the various options available, as a litigation attorney does not always have the specialized knowledge needed to consult thoroughly on the implications in respect of immovable property transfer.