The split of marital assets, such as real estate, is one of the divorce proceedings’ most stressful aspects.
According to Bernard Cowley, a Real Estate Agent in Pretoria working for Fitzanne Estates, real property is the largest investment that most South Africans would ever make. This includes any involvement in land, real estate, cultivating (industrial or even horticultural) plants, or the renovations of it.
The marital couple’s immovable assets may include things they bought before and after becoming married. When settling the distribution of assets, the spouses and the court will typically automatically follow the matrimonial property system that applies to their marriage.
The settlement agreement reached by the respective spouses during divorce procedures will be significantly influenced by whether the couple was married in community of property or out of community of property with or without accrual.
Division of Assets in Divorce & Divorce Settlement Agreements
In some cases, the spouses may decide to enter into a settlement agreement that addresses the proprietary matters after their marriage ends.
The couple will have full contractual right to either apply the matrimonial property regime applicable to the marriage or to draw up this alternative settlement agreement if it is proven to suit their circumstances better.
“In other words”, according to Cowley, “a divorce settlement agreement may supersede the conditions of a couple’s marital regime.”
The divorce procedure in community of property in South Africa
Let’s review what it means to be married in community of property. In layman’s terms, it signifies a commitment from both parties to share all assets and liabilities, except for inherited property. As a result, in the eyes of the law, both parties are seen as a joint unit known as an estate.
Typically, the rule about the transfer of property after divorce in South Africa when married in community of property is that you share the assets 50/50. However, the underlying condition is that the two of you must not have signed an ante-nuptial contract (“ANC”) before tying the knot.
How are assets divided in a divorce in South Africa?
If the couple was married in community of property, then the assets are split evenly. However, the rules may change if one spouse claims forfeiture and the court grant them a forfeiture order.
What is a forfeiture order in divorce?
A forfeiture order is granted when one party forfeits the assets acquired due to marriage in community of property or benefits accrued from an ante-nuptial claim.
Who gets the house in divorce in South Africa?
After the divorce order, one spouse can become the 100% owner of the communal home, but with an appropriate financial modification that accounts for the value of the other spouse’s 50% share.
What is the divorce procedure if you are married out of community of property?
This means that you have separate estates. So, what you brought to the marriage stays yours, as well as growth in asset value during the marriage, depending on whether the accrual system applies.
However, in 2022, Gauteng High Court reserved judgment in an application to allow divorcing spouses married out of community of property and without the accrual system, to be compensated for what is considered their financial contribution to the marriage.
What happens to the matrimonial home in a divorce?
The decision is made considering several variables. The terms of your ANC, for instance, and whether you were married with or without “accrual” have an impact on the choice.
Unless you specifically opted to get married “without accrual,” the default is “with accrual”. No formal transfer or endorsement of the title deed is necessary if the house is currently registered in only one of your names and that spouse will keep it.
In a community property divorce, the parties must divide the assets equally between them. Regarding the house, however, one party can acquire 100% ownership, but only after making a financial adjustment to reflect the worth of the other spouse’s 50% portion.
Need to Sell your Home During a Divorce?
Selling your house while going through a divorce is extremely difficult. Dealing with the law, and lawyers, and making decisions you never thought you’d have to make can be challenging. Additionally, you have to deal with a wide range of emotions, which might make you feel disoriented and sad. There is obviously a lot to consider as no one plans on being divorced until it actually occurs.
Sadly, if you shared a house, there is another problem that needs to be resolved.
It may be difficult to sell your house while going through a divorce, particularly if you and your (soon-to-be former) partner can’t agree on what should happen to it. In order to maximise the investment you made as a married couple, there are numerous aspects to take into account. A lot of divorcing couples are eager to sell because they want to finish the process quickly. This isn’t always a smart move because unscrupulous purchasers will take advantage of you and drive down the price of your home.
So, what is the ideal remedy? The reality is that every divorce is unique, and there isn’t a single answer. There are, nevertheless, a few pointers that could be useful during the process.
Consider buying the home after the divorce
Some separated couples decide to buy out the other party and take sole ownership of the property. You’ll have a place to live as a result, which may be advantageous for you.
You might also think about leasing it to tenants. In this scenario, you will have a second source of income and can still leave the house to your children after your passing.
Of course, renting has its own set of difficulties, such as ongoing upkeep and repairs. Consider this when making your choice.
Choosing to sell: agree on an asking price
Selling to a third party, however, is often the best choice for divorcing spouses. Additionally, if you don’t have children, it gives you both the opportunity to start over fresh without being dependent on one another. You and your ex-partner must come to an agreement on the asking price if you decide to sell.
The best course of action would be to speak with a real estate agent in Pretoria and arrange for a house evaluation as soon as feasible. Since the real estate agent will be providing professional advice, working through a third party may minimise any conflicts.
Discuss the costs of selling the house during the divorce
Before your house may be sold, several conditions must be met. You might first need to do some home repairs to get the best selling price.
Second, after the sale is completed, you will have to pay the real estate agent’s commission and the lawyer’s fees. You will need to sit down with your ex-partner and talk about who is accountable for what. Will you split the expenses 50/50 or will you let the divorce attorneys decide whether to include them in the divorce settlement? It’s best to decide this upfront.
Consider the benefits of a cash offer
Finding a buyer who would buy your house in cash is the quickest way to sell it as they don’t need to go through lenders. If they can deposit the entire sum to your account right away, it will save a ton of time. By doing this, you and your ex-partner can split ways right away and still sell your property for a fair price.
Without having to wait months for the buyer to receive approval from the bank, you can divide the money as you see fit.
Don’t make any emotional decisions
Selling a house based only on emotions is the worst thing you can do for yourself. People often argue during divorces about little things and seek retribution, which leads them to make bad choices that they later regret.
Instead, seek the assistance of a mediator or real estate agent in Pretoria who can provide you with sensible guidance, especially when it comes to selling the house. If you and your spouse are still getting along during the divorce, talk about your expectations in an honest and open manner. Pay attention to what they have to say and look for areas of agreement.
Need help selling your home during the divorce process? Contact Fitzanne Estates today and let us guide you through this difficult time.
More about Fitzanne Estates
Fitzanne Estates (Pty) Ltd is a Property Management Company that can sufficiently administer your property investment to the benefit of the Landlord, the Body Corporate, and the NPC – Non-Profit Company. Services include Letting, Sectional Title Management, Full Title Management (NPC – Non-Profit Company) and Sales.
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