Olwethu Ndungane studied at the Nelson Mandela Metropolitan University where she graduated in 2013 with an LLB degree. She served her articles of clerkship at Spoor & Fisher focusing on Trademark Prosecution and Litigation. She has also gained valuable experience in the practice of legal costs, including the drafting of bills of costs, preparation of points of objection, negotiation of legal costs settlements as well as divorce and family law related matters. At present she practices as an Associate in the Property Law and Conveyancing Department at the Cape Town office of STBB. She is hands-on in that office’s Development Bond Centre where she focuses on residential and sectional title developments and the related compliance responsibilities (including building documentation compliance and various aspects relating to the transfer and bond registration processes).

Thought of the week | My share, your share: Transfer of property on divorce

Joint ownership in immovable property is usually awarded to one owner upon the death of a joint owner, or if an agreement exists between parties to sell or donate shares, or on divorce.  In this post we discuss two issues relating to property transfer on divorce:

1.  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?

2.  What process should be followed?

It is important to understand the nature of our land registration system. Its primary goal is to give public notice of ownership of and real rights in land – also upon divorce.  In this regard, the Deeds Registries Act attempts to regulate the administrative aspects of the registration of land in a clear and practical way, while simultaneously providing substantial protection to landowners.

1.  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.

2.  What process should be followed?

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 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.