29 June 2022

Immovable Property and Divorce

Submitted by SchoemanLaw Inc

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

SchoemanLaw Inc

SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.