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Effect of divorce

19 July 2012

Introduction
On divorce each spouse acquires full legal capacity, unless the court makes a special order. The consequences on immovable property are the same as when a marriage is dissolved by death.

The effect on property acquired before or during marriage will now be discussed:

Marriages out of community of property
Where the parties are married out of community of property each continues to hold the property registered in his or her name, unless the court provides otherwise.  The change in the status of the spouses must be proved to enable a registrar of deeds to ascertain whether the rights of third parties are affected (Allen v Allen, 1951 (3) S.A. 320 (A.D.)).

Marriages in community of property
Where the parties are married in community, the community of property is dissolved with effect from the date of the divorce, even if not mentioned in the order (Gates v Gates, 190 N.P.D. 361 and Joseph v Joseph, 1951 (3) S.A. 776 at p. 778).  Each spouse is entitled to a half share of the estate, but the parties can agree to a variation which the court must confirm.  If there is no agreement, then each spouse is entitled to one half share of the property.  If there is an agreement, whereby the one spouse acquires the half share of the other spouse, transfer of the half share must be effected (see section 45bis(1)(a) of the Deeds Registries Act 47 of 1937 (DRA)).

Where property is acquired during the marriage, but is not transferred until after divorce, it should, in the absence of an agreement confirmed by the court, be transferred to the spouses in half shares, since section 17(3) of the DRA requiring transfer to be passed to the joint estate of a deceased person and his surviving spouse does not apply to divorces.  As the Registrar will not be aware of the divorce, it is possible that the transfer might inadvertently be passed to the purchaser, alone.  In such case the “other” former spouse would seem to only have a personal right (Bekker’s Executor v Bekker’s Trustee, 1908 T.S. 553).

If property was acquired during the marriage but not transferred, it seems clear that a distinction must be made between property acquired by the joint estate and property acquired by one spouse personally, for example, by succession.  In the latter it is clear that the property would be transferred to the spouse so acquiring it, but in the former it would seem that the property would have to be transferred to the parties in half shares (see Grobler v. Grobler, 1944 E.D.L. 153).

It is obvious, however, that where property is acquired but not transferred before divorce that the full facts must be placed before the court.

Allen West
Deeds Training
Pretoria

Reader Comments: 2
Sara Scheiner 20/07/2012:

This article starts with the words "On divorce each spouse acquires full legal capacity, unless the court makes a special order" which is not quite correct. I presume that what is intended is that when a marriage IN community of property ends by divorce, each spouse acquires full legal capacity, because when people marry OUT of community of property, they never lose full legal capacity, do they?

Allen West 20/07/2012:

With regard to immovable property , the court can restrict the owner to deal with property registered in his / her name. This being the reason for the opening statement

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