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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2012-12-12
A couple married in community of property are considered the joint owners of all the property in their estate, both movable or immovable and regardless of the fact that the actual item or property is only in one of their names. Apart from having the marriage registered, there's no other formal documentation required, which is unlike the ante -nuptial contract. That's one of the great benefits of being married with this type of marital regime in place. Maximum benefit for very little effort especially if only one of the spouses was working yet the other spouse still had the entitlement of fifty per cent of everything. A closer examination will reveal that such a marital regime is not all that rosy.

The flip side to such a marital regime is that the parties share equally in the profits and loss. Herein lies the problem. Sharing your spouse's losses could mean that you would be considered a debtor to all your spouse's debts. Judgment would be taken against you and if your spouse becomes insolvent, you would automatically become insolvent as well, whether or not you were diligent about paying your own creditors. Dividing the assets in a community of property marriage is one of the most contentious issues in a divorce. Very often the parties will own some immovable property, which usually is the matrimonial home.

Who gets the house, how the property is divided, who will pay for the bond instalments if any, are all matters that need to be ironed out prior to the finalisation of the divorce. Some of the options which may be available for consideration would be (a) the couple agree to put the house up for sale and equally share the proceeds of the sale, after settlement of any existing bond which may be registered over the property in question, or (b) one of the parties takes over the other spouses' half share in the property and pays to that spouse the monetary equivalent of the fifty per cent share.

There is a vehicle in law, which allows for an endorsement on the title deed to record that one of the spouses is taking over the other's fifty percent share in the immovable property. You would need to get the consent of the bond holder (the bank) to allow for such an endorsement to be made. Normally the bank is willing to consent to such an endorsement. The process is conducted as a conveyancing transfer and registered at the Deeds Office. Transfer duty for the fifty percent not owned by the spouse, would need to be paid to SARS, bearing in mind that the exemption of up to R600 000,00 carries no transfer duty payable. Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.