Tuesday, 7 April 2020
Does a divorce order, together with a settlement agreement whereby the one spouse acquires the other spouse’s share in their joint property have the effect of transferring the property?
No. Apart from minor exceptions, 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.
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. Upon registration, the Registrar will endorse the title deed to show that the previous spouse no longer holds 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.
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