Terms of the settlement
The settlement agreement between the spouses will dictate how the fixed property registered in both their names will be dealt with. For example, if one spouse is awarded the house in terms of the settlement, the other party’s half share will have to be transferred to that party and the marital regime will dictate how this transfer is to be done.
If the parties were married in community of property, the transfer of the half share may take place by way of endorsement in the Deeds Office in terms of Section 45 of the Deeds Registries Act, 47 of 1937. This is an abbreviated form of transfer done by way of application, specifically catering for marriages in community of property being dissolved as a result of divorce or death. If the parties were married out of community of property, the transfer of the half share will have to be done by way of conventional transfer. In other words, the process followed will be the same as with the typical purchase and transfer of a property.
By law, a share in fixed property is an undivided share and can only be equated to percentages and not to a specific portion of the property. The transfer of an undivided share will take the same time as a normal transfer subject to the parties and the shareholding being uncomplicated and certain.
The transfer fee payable in a situation where one spouse is buying the other’s share in a jointly owned property will be based on the value of the property as a whole. Transfer duty will be calculated on the value of the whole property and then divided by the relevant percentage held.
Financing of the property
A bond registered over a property held in the name of more than one party can be dealt with in one of two ways, subject to the bank’s credit approval. Firstly, the existing bond can be cancelled and a new bond be registered in the name of the remaining sole owner. This can be quite a costly exercise as there will be a bond cancellation and a registration fee, however, in certain circumstances a bank may insist on this course of action.
Alternatively, the one debtor/owner can be substituted as the sole debtor/mortgagor under the bond. This will be done in terms of an application to the Deeds Office to this effect in terms of Section 57 of the Deeds Registries Act. The bondholder will have to consent to this application and the costs of such application will be less than the aforementioned cancellation and registration.
The simplest course of action before initiating a transfer of ownership to one of the property’s co-owners is to consult with reputable conveyancing attorneys who will be able to offer advice on how best to proceed depending on the specific case.
Written by Wessel de Kock