Navigating Property Ownership and Divorce: Expert Legal Insights

When marriage ends, the question of who gets the matrimonial home can become a central issue during divorce proceedings. In South Africa, the division of property upon divorce is governed by the marital regime under which the marriage was contracted. This regime determines how property, including the matrimonial home, is owned and subsequently divided.

Understanding Community of Property (COP) vs. Antenuptial Contract (ANC)

For couples married in Community of Property (COP), all assets and liabilities accrued during the marriage are shared equally. This includes the matrimonial home, regardless of whose name is on the title deed; both parties have a legal claim to the property.

Conversely, for those married out of COP under an ANC, the ownership of property is dependent on whose name the property is registered under or what the terms of the ANC stipulate – particularly if the ANC includes the accrual system.

The Process of Division

According to legal experts like Maria Davey and Eduan Milner, the process of property division can be complex and costly. If one party wishes to retain the matrimonial home post-divorce, they may need to buy out the other's share. This involves not just an agreement on the value but also handling conveyancing costs, transfer fees, and oftentimes, a new or restructured mortgage bond. Regardless of the emotional attachment or desire to maintain stability for any children involved, the financial feasibility of retaining the home is a key consideration.

Couples should get a valuation of the property and seek approval for bond takeover or acquisition with their bank before agreeing to any settlement. This could protect against the common scenario where an agreement is reached but the financial obligations cannot be met by the retaining spouse.

Should the parties decide neither can afford to keep the home or agree on who should retain it, the most common resolution is to sell the property and divide the proceeds. This also circumvents potential legal battles over entitlements and contributions, which can be financially and emotionally taxing, and offers each party some liquidity to start afresh.

Strategy for Protection

Legal professionals stress the importance of protecting one's rights through proper registration of property ownership. If contributions are made towards the property by a spouse whose name is not on the title deed, formalizing an agreement that outlines these contributions and their implications on property division in case of divorce is second best. However, this is still a written agreement that may require court enforcement.

Having one's name on the title deed as a co-owner is the most direct and legally binding way to safeguard one's investment into the matrimonial home. By considering and addressing property ownership at the outset of a marriage, couples can mitigate many issues that could arise during a potential separation.

This critical advice for soon-to-be or current homeowners can also be a warning: romantic partnerships and their dissolution can have significant financial implications. It is essential to enter into these arrangements well-informed and with a clear understanding of the legal landscape.