In the emotional storm of a divorce, few topics spark more anxiety — or conflict — than who gets the house.
Is it the person who paid the bond? The parent who stays with the children? The one listed on the title deed?
The truth is, deciding who stays in the home is only part of the picture. The bigger, legally binding question is: how is the ownership of the property divided and transferred post-divorce?
If you’re based in the Northern Cape, particularly in areas like Kimberley, Upington, or Kuruman, where property ownership is often central to a family’s wealth and generational legacy, this issue is not just emotional — it’s financial.
At Engelsman Magabane Incorporated, we handle both the family law and conveyancing aspects of this process — ensuring that you don’t just “win the house” but that it’s properly transferred in law.
Here’s what you need to know about dividing property during divorce.
- First, Who Owns the Property?
Ownership in South African law is determined by the title deed — the legal document registered in the Deeds Office confirming who owns the property.
It doesn’t matter who paid for the house, who lived there the longest, or who loves it more. If your name is on the deed, you are the registered owner.
But this doesn’t mean ownership is always final. In divorce, courts can order the property to be transferred, sold, or split — depending on the marital regime.
- Marital Regime Matters
The way the home is divided depends largely on your marital regime:
- In community of property: The home is part of the joint estate, regardless of who’s on the title deed. Each spouse is entitled to 50%.
- Out of community of property without accrual: You keep what you brought into the marriage and what’s in your name.
- Out of community of property with accrual: The value of the estate (including property growth) is calculated and shared accordingly.
Most married couples don’t realise that the agreement they signed at the beginning — or didn’t sign — affects their rights to property decades later.
- But I Built That Home — Doesn’t That Count?
Improvements made to a home can be taken into account in divorce settlements. If you invested significantly in upgrades or renovations — such as extensions, paving, or new installations — your attorney may be able to argue for a greater share of the estate, particularly if it increased the home’s market value.
However, these claims must be properly recorded, valued, and included in your divorce settlement. Legal advice is crucial here.
- What If There’s Still a Bond?
If the property still has a mortgage (home loan) attached to it, both the division and transfer of the property become more complex.
The bank — not your spouse — is your co-owner in a way. The bond must be settled or transferred before the property can change hands. There are a few possible options:
- One spouse takes over the bond: The bank must approve this, and the spouse must qualify financially to take on the debt.
- The property is sold: The bond is settled from the sale proceeds, and the balance (if any) is divided according to the divorce order.
- The property is refinanced: The current bond is cancelled, and a new one is registered in the name of one spouse.
Whatever the option, banks require a clear divorce order and supporting legal documents before anything happens.
- Who Pays the Transfer Costs?
This is often a shock: if the property is transferred from one spouse to another, standard transfer fees still apply — including attorney fees, bond registration costs, and potentially transfer duty (depending on the value and situation).
Many couples assume that transfer between spouses is automatic or free. It’s not.
However, SARS does offer relief: if the property is awarded in terms of a divorce order, no transfer duty is payable — but the transfer must still be done formally through a conveyancer.
- You Must Actually Transfer the Property
This is the most important point we can make: agreeing in a divorce settlement that “the wife gets the house” or “the husband keeps the property” is meaningless unless that decision is formalised in the Deeds Office.
It’s not enough to live there. You must:
- Get a final divorce order stating who gets the property
- Appoint a conveyancer to draft and lodge the transfer
- Ensure the bond is settled or restructured
- Pay the necessary fees
- Update the title deed in the Deeds Registry
Failure to do this can cause massive problems years down the line — especially when selling, remarrying, or dealing with estates after death.
At Engelsman Magabane Incorporated, our dual-qualified attorneys ensure a smooth process from the family law side right through to the transfer of the property. Attorneys Ian Jooste and Tasneem Mahomed lead our conveyancing division and work hand-in-hand with our divorce team.
- How Does This Work in the Northern Cape?
In smaller towns across the Northern Cape, where property ownership is a significant financial asset, we’ve seen many divorces stall because of conveyancing delays. That’s why we recommend involving a conveyancer at the outset of your divorce.
In towns like Springbok, Postmasburg, and Kathu, where access to Deeds Offices may require travel to Kimberley or further, we handle all the logistical and legal administration for you.
We’ve helped dozens of clients avoid costly mistakes by ensuring their divorce orders align with Deeds Office requirements and that SARS exemptions are properly applied.
- What About Pension-Backed Bonds?
If your home loan is linked to a pension-backed scheme (common in government or mining sector employment), your pension may be at risk. These agreements are complex, and divorce orders must be carefully structured to protect your retirement while allowing for fair property division.
Always speak to both a family law attorney and a conveyancer if you suspect your bond is pension-backed.
- Can the House Be Sold Before the Divorce Is Final?
Yes, if both parties agree and the court is satisfied that it won’t prejudice anyone. Sale proceeds can be held in trust pending the final divorce settlement, ensuring neither spouse dissipates the funds unfairly.
However, it’s wise to wait until at least a Rule 43 order (interim relief) or a signed settlement agreement is in place before selling the home.
- Can the Court Force the Sale of a House?
Absolutely. If one spouse refuses to move out or refuses to buy the other out, the court can order that the property be sold, and the proceeds divided accordingly. This is often a last resort but may be necessary in highly contested or abusive divorces.
The Children Come First
If there are minor children involved, the court will always prioritise their best interests — including whether it’s best for them to stay in the family home, who they reside with, and whether that person can afford the mortgage and maintenance costs.
Always include a clear, child-focused rationale in your divorce settlement if your property arrangements affect children.
Conclusion: Legal Clarity, Financial Security
The home you shared may be full of memories, but once divorce is on the table, it becomes a legal asset that must be fairly and correctly divided. It’s not just about who stays — it’s about who owns, who pays, and how the transfer is done.
With the help of both a divorce attorney and a conveyancer, you can ensure that this major asset is protected, legally secured, and properly registered in your name — or sold in a way that benefits both parties.
At Engelsman Magabane Incorporated, attorneys Ian Jooste and Tasneem Mahomed are ready to assist with the full journey: from divorce order to deeds registry.
Contact us today to begin the process the right way.