Divorce Transfer
Key Takeaways:
Divorce property transfers involve the distribution of assets after a marriage dissolution in terms of the divorce settlement agreement.
Legal conveyancing processes and valuation considerations are crucial elements.
Professional guidance from a conveyancer ensures a fair and legally sound property transfer amid divorce proceedings.
Conveyancing relates to the legal process that transfers ownership of the home from the seller to the buyer. The conveyancer (who is an attorney) is usually appointed by the seller, but paid for by the buyer (the fact that the fees are normally covered by the buyer is simply a rule of thumb.
It’s not something that is necessarily set in stone and a different arrangement can be negotiated in your agreement of sale).
Conveyancing is not only a complicated process, but a time consuming one as well. Particularly in transactions related to the subdivision or consolidation of properties, the registration of servitudes or transfers of both divorce or deceased estates.
What does the transfer of property entail?
Once a seller has accepted an offer to purchase (meaning the transfer process has officially begun), the buyer must produce proof that that their bond application has been successful.
Following that, the seller must then appoint a transfer attorney, (who is a conveyancing attorney) to handle the transfer process. Transferring attorneys are one of three attorneys who will play an important role in the home buying process. This team of attorneys includes:
the transfer attorney, or the conveyancer who is responsible for registering the property in the new owner’s name,
the bond attorney (appointed by the bank) who is responsible for registering the bond in the home buyer’s name, and
the cancellation attorney (appointed by the bank) who is responsible for attending to the existing bond cancellation.
Once the transfer duty has been paid, all documents have been lodged at the Deeds Office and the transfer attorney has finalised their accounts and paid over all proceeds to the seller, commission to the agent and refunded any credit that is due to the seller (within 12 months), registration of the property (meaning the purchaser is now the new rightful owner of the home) should then occur.
What does a Conveyancer do?
Firstly, it must be noted that no property sale or transfer can be concluded without having a qualified conveyancer on board.
A conveyancer is a lawyer that has passed an additional conveyancing qualification exam and is a specialist in the field of property and conveyancing. They perform a vital function where completing a property transaction is concerned.
Conveyancers attend to the process of transferring legal ownership of fixed property from one person (or a company or trust) to another. In a nutshell, this process amongst other things, involves ensuring the deed of sale meets all the legal requirements, including requesting and collecting supporting information (such the mortgage bond, cancellation figures, title deeds from the seller’s bank, compliance certificates from the seller, and the amounts from the municipality for a rates clearance certificate).
The conveyancer is also tasked with drafting all the necessary documentation (such as a “power of attorney to pass transfer” for the seller to sign, a declaration in respect of marital status, ID Number as well as the bond registration documentation for the purchaser when registering the bond) that needs to be lodged with the deeds office to finalise the registration of the sale.
What is a Divorce Transfer?
Immovable property can only be transferred from one person to another by virtue of registration of the transfer in the Deeds office. The dissolution of a marriage after divorce does not automatically bring about the transfer of ownership of the property. It merely allows for the recipient spouse a claim to the transfer of the share of the previous spouse.
Divorce transfers are complicated as questions often arise as to when a spouse, who is entitled to receive a half share in immovable property, becomes the owner of that half share. The general rule is that acquisition of ownership in land requires an act of registration that will need to be registered in the Deed’s Registry. Until that time, a spouse only acquires a personal right to compel transfer of the other spouse’s half share (therefore transfer does not automatically happen when the divorce order is granted).
In order for the property to vest wholly in the recipient spouse, and depending on whether the marriage was in or out of community of property, a specific process must be followed to effect registration of the arrangement regarding the ownership of the property in the Deeds Office.
Note:
Upon registration, with a marriage in community of property, the Registrar will endorse the title deed to show that the previous spouse no longer holds an interest in the property and that the former’s rights to the property now vests with the recipient spouse, as though that spouse had taken formal transfer of the property from the previous spouse.
With a marriage out of community of property, the spouse who acquires the property will need to undergo a formal deeds office process and obtain a new title deed in his/her name.
For more information on Divorce Transfers, refer to our article How to transfer your property after divorce?
Why you should hire a Conveyancer during Divorce Transfers?
Divorce is a difficult time for all parties concerned. Whether it is an uncontested or acrimonious divorce. Having to deal with the consequences of immovable property (and the disposal of assets in particular) can have both far reaching and emotional consequences for all concerned. It’s a complicated ordeal.
It is therefore always prudent to obtain the assistance of suitably qualified conveyancers who will be able to support your divorce lawyers and guide you through the transfer process to ensure that you proceed on the correct basis and therefore prevent wasted efforts, unnecessary disputes and undue undelays.
While it is a complicated process, Benaters are able to guide you through this process doing our utmost to eliminate delay, unfairness and hostility.
What is required for a successful Divorce Transfer?
You will require a copy of your settlement agreement (which is made an order of court), divorce order and copies of your title deeds.
Note - transfer of immovable property per a divorce order will take place by endorsement in accordance with Section 45 of the Deeds Registries Act 47 of 1937. The spouse who received a full share of the property will make an application to the Registrar of Deeds to endorse the current title deed, displaying only him or her as being the owner. If the divorce order stipulates the immovable property is to be divided in equal shares, both parties will make an application to the Registrar of Deeds, who will award both parties undivided shares in the immovable property. In the event that parties are married out of community of property and the divorce order is silent on the immovable property, the spouse who has ownership will retain his/her ownership. If there is a bond on the immovable property, the bond will also be endorsed to reflect the substitution of the debtor under the bond. If the person taking transfer cannot afford the bond, the property will be sold and profits will be awarded to the said spouse.
Why should you trust Benaters to handle your Divorce Transfer?
Whilst divorce is not one of our areas of expertise, property is. And we are proud to be able to offer Conveyancing, a specialised niche service to you, our clients. We take our duties as Conveyancers very seriously (always keeping in mind the impact a property transfer can have on an individual or family) and therefore hold our work to very high standards. You can trust us with your property, because we treat the entire process as if we were going through it ourselves.
We are here to help you. In any way we can!
So please, get in touch and let us handle your property transfer in the best way we know how – professionally and with the utmost due care.