Legal Articles

In many of the divorce matters that we handle the most prevalent of disagreements and legal disputes emanate from the division of assets.

It is not because the legal rules are not clear, it is largely to do with the fact that due to the frustrations, strain, shock, disappointment and stress, the divorcing spouses try to do as much as they can to disregard legal rules to walk away at an advantage over the other.

What to Do with the House in a Divorce – Divorce Act South Africa

The legal rules themselves are noticeably clear if applied accordingly, especially as provided in the Matrimonial Property Act 84 of 1988. This Act provides for the matrimonial property systems prevailing in South Africa and parties intending to marry are encouraged to consult with us before the conclusion of the marriage. This is to get informative advice with regards to the matrimonial property system that suits their circumstances.

Property is one of the most valuable and important assets in a marriage. It is not surprising as it is a basic human need and central to human survival.

It stands to that premise therefore, that parties feel the urge to retain the matrimonial house after a divorce process. In these disagreements with regards to the house, the Courts simply apply the legal rules much to the disappointment or relief of either party.

Despite the foregoing, it is indeed possible at the start of the marriage to secure the retention of the house should parties decide to divorce in future.

The surest way to achieve the retention of the house at divorce is done at the start of the marriage. This is achieved through the execution of an Antenuptial Contract which prescribes the exclusion of the house from the joint estate, to the effect that it is the sole property of one specified party.

This effectively means the house will belong to the one party and will not be subject to division and/or liquidation at divorce.

The conclusion of a Postnuptial Contract is indeed another way, although it not the most certain. This is because once parties conclude a marriage in community of property, by operation of law there is effectively a joint estate.

Divorce Act in Community of Property

Some spouses will detest the idea of then changing the matrimonial property system to Out of Community of Property and then giving up their share of the matrimonial house for the benefit of the other spouse.

This normally happens on the part of the spouse who did not bring the house into the marriage. Executing a Postnuptial Contract giving sole ownership of the house to the other spouse may feel like a loss, and therefore it is not a certainty that the spouse will agree to give up their share of the house after the marriage is concluded. It is best therefore to resolve the issue before the conclusion of the marriage.

The third way is through a settlement agreement during the divorce process. Like the option of concluding a postnuptial contract, this option is also not a certainty.

During the settlement process before the divorce order is given, spouses may opt to sit down and agree on how their joint estate will be divided. In terms of which spouse will keep the house after divorce, it is helpful for parties to consider the following:

1. Who brought the house into the marriage;
2. In whose name is the house registered in;
3. Are there any liabilities on the house e.g bond repayments;
4. The need for minor children to have a ready house to live in;
5. The proximity of the house to where the children attend schooling, medical facilities and their safety;
6. The capacity of either party to maintain the house or settle liabilities;
7. The possibility of one party buying out the other party of their share;
8. Any other relevant factor.

Van Deventer & Van Deventer Incorporated – Divorce Attorneys in Cape Town and Johannesburg

Should parties not be able to agree on the issue of which one of them will retain the house, the Courts will apply the legal rules and give an Order over the matter which will be detrimental to the interest of one party over the other.

The Court usually orders that the house be sold, and proceeds settle the arrears, whilst the residue thereof is then divided between the parties, or may give such order as it deems just under the circumstances.

At Van Deventer & Van Deventer Incorporated, our approach is comprehensive and committed. We will assist you to plan the legal security of your interests. Contact us to find out more.

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