More often than not, spouses married in community of property or otherwise settle their divorce actions. When this happens, an agreement commonly known as a Deed of Settlement is entered into. In this agreement, the divorcing spouses outline what will happen to their estate, that is, who keeps what and who takes what. What happens when the other spouse keeps the immovable property which both parties occupied? This article will discuss what options are available for the spouse keeping the immovable property.

Without question, divorces are an order of the day. Litigation attorneys and the courts deal with divorce actions day in and day out. Most of the divorces are never left to the courts for final adjudication, parties often come to term with the fact that it is better to keep control and decide what to do with your property.

TYPE OF MARRIAGE

The marriage regime governing a couple’s union will give an indication as to what will happen to the estate (assets and liabilities). Equally so, the marital regime that the couple chose will have a bearing on the extent of the dispute regarding the assets.

If parties are married in community of property, they own what is called a joint estate. They both have an undivided share in the assets as well as the liabilities. Accordingly, practice indicate that, spouses married in community of property are the ones who mostly have disputes about their division of their joint estate. Such a general position is comical, because, one would expect such parties to know that they chose to divide everything equally upon the dissolution of their marriage.

Parties married out of community of property with accrual also have a ground to dispute assets. In law, the spouse whose estate accrues more than the other, such accrual must be divided equally with the other spouse who had a lesser accrual. In this sense, the dispute regarding the division of the assets is limited to what was included in the accruing estate of the respective spouses.

SETTLEMENT HEADS UP

When spouses finally decide to settle, it is in the financial interests of whether for them to come to a decision, as soon as possible of how they are going to divide their assets.

Experience indicates that, a disguised issue often arises about immovable properties. Essentially, spouses will decide that spouse A will keep the marital or communal house as his/her sole property. But what happens when at the time that the spouses get divorced spouse B is still residing at the marital or communal house? What if the other spouse does not want to sign the transfer papers? What can spouse A do?

Such a situation can infringe on ownership rights of the spouse that kept the property as their sole property. More so, it can inadvertently inhibit them from disposing off of the property should they want to sell or lease it out or in the way that they please to use it.

Accordingly, when spouses are settling their divorce, it may prove wise for them to ensure that at the time of signing the settlement agreement and or before the divorce is settled, there is at least a plan in place to ensure that post-divorce, the other spouse will no longer be residing in the property.

Accordingly, an option to approach court seeking relief that a different person sign the transfer papers on behalf of the other spouse for purposes of transferring the immovable property to the spouse keeping it may be done, although this may be quite expensive, it is arguably less expensive than a general administration of the estate by a liquidator.  A court can authorise third parties such as the Sheriff of the court to stand in the shoes of the other spouse.

Further If it unwisely happens that the spouses agree otherwise about occupation of the property, the spouse who will keep the immovable property as their sole property will have a right to eject or evict their ex-spouse.

Such measures are drastic and have significant cost and emotional implications. However, as a last resort, the spouse that wants to enjoy their full rights with respect to their property, be it leasing or selling or otherwise, will have an option to take their ex-husband or wife to court for an eviction of the other, this is achievable because the other spouse, will no longer have any right in law to continue occupying the property..

CONCLUSION

It is advisable that parties consider these ‘dos and don’ts’ when they negotiate and settle their divorce especially where immovable property in concerned.

Spouses must ensure that they choose experienced attorneys who will not only consider their best interests during the divorce, but also post the divorce action.

Reference List:

• Divorce Act 70 of 1979.
• Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.