The court order’s wording on finalization of a divorce is very important. Our conveyancers are experiencing more and more court orders where the property is not specified correctly which causes delays in the transfer process and unnecessary costs for the party that has to approach court to amend the court order.

Unfortunately, we often encounter divorce orders where the immovable property is dealt with in very little or no detail.

If for instance the wording is not done correctly, this can result in further legal fees where one of the parties must approach the court to amend the court order which can also be time consuming.

The order cannot simply state that the property be divided or that all immovable property be sold or kept by one of the parties.  The order in the first instance must properly state all necessary information as when required in a contract for sale of immovable property.  The erf no, district and street address are required. 

It is also very important, if possible, to note what will happen with the property.  For example, will the property be sold and the profit be divided between the parties, or the one party become the sole owner of the property.  These are only 2 very basic options. So please make sure that when a court order is made, be it uncontested or in a settlement agreement - it is important to deal with details.

Also, very important point to discuss: Current owners as sellers, the buyers and even agents, need to take note of certain factors taken into consideration when attending to a property which is dealt with in a divorce order. 

Costs are a big issue that is not always properly explained to the parties or client.  A court order is made and when the conveyancer must attend to the transfer, it is only then when the parties realize that important details or aspects were not discussed or attended to at the time of divorce.  This is a very frustrating situation for all.

Not only just the wording of the order is important but also to agree and note in detail who will be receiving the property as well as who will be liable for the transfer costs.  In some instances where a ½ share is transferred to the other party there will for instance not be transfer duty payable to SARS as in other transactions BUT transfer costs will still be payable and normally by the Seller.

Costs does not only include legal fees to transfer the property but also make sure who is responsible for proceeding to pay the bond, if applicable, while only one party is residing in the property as well as expenses like municipal fees, insurance, levies and costs of maintaining the property.

Do yourself a favor and ask for a quotation on legal fees.  These fees are calculated as per the value amount the property is sold for.  If there is currently still a bond registered over the property and in both the parties’ names, take note that to transfer the ½ share the current bond should be cancelled and a new bond applied for by the person who is obtaining the ½ share.  Al these fees can amount to legal fees which cannot be paid by the party obtaining the ½ share and the result is that the property remains registered on both names. 

We have had clients who had proper agreements in place but the municipality account in arrears for instance, which was a large amount and could not be paid by either party and the transfer is not proceeding while those expenses just increase day by day.  This also resulted in our client, who signed off on the property, not being able to buy his or her own property as there was already a bond registered against their name and this had to be taken into consideration by the bank to see if a second bond will be affordable for our client.  The bond account also went into arrears.  Since the person’s name was still attached to the bond, this influenced the person’s credit record in a negative manner. 

Divorce I assume, is not easy and I trust the information will make our clients aware of things to take note of before finalizing a divorce.

Divorce is an emotional and difficult time for all parties concerned.  The consequences of dealing with immovable property can particularly be further reaching than what the parties initially anticipated.  To limit stress and dealing with changes after the divorce, attempt to make sure that detail regarding disposal and splitting of the assets are attended to as best possible.    Ask questions during the settlement or finalization of the divorce to put most of your concerns at ease.  We are here to help make the process as stress free as possible.