WHAT HAPPENS TO OUR HOME IN A DIVORCE?

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Divorce is never easy – emotionally, financially or practically. One of the biggest questions couples face is what happens to the property they own together. In South Africa, the answer depends largely on the marital regime under which you were married. Here’s a clear, practical guide to help you understand your rights and what to expect.

 

1. First things first: What marital regime are you married under?

 

South Africa recognises three matrimonial property systems:

 

Marriage in Community of Property (COP)

 

This is the default if you didn’t sign an antenuptial contract (ANC) before getting married.

 

  • You and your spouse share one joint estate.
  • All assets and debt acquired before and during the marriage form part of this estate.
  • The house, whether bought by one spouse or both, is jointly owned.

 

What happens to the home?

The property forms part of the joint estate and must be divided equally.

Options include:

  • Selling the property and splitting the proceeds 50/50;
  • One partner “buying out” the other’s 50% share;
  • Transferring the property to one spouse as part of the divorce settlement.

 

Marriage Out of Community of Property Without Accrual

 

This applies where you signed an ANC excluding accrual.

 

  • You each have your own separate estates.
  • Assets acquired before and during the marriage remain separate.

 

What happens to the home?

The answer depends entirely on whose name the property is registered in and who contributed to its purchase.

  • If the property is registered only in one spouse’s name, and purchased with that spouse’s funds, it generally remains theirs.
  • If both contributed financially or if both names appear on the title deed, each spouse retains their share as per the deed.
  • If one spouse contributed significantly to a property registered only in the other’s name, they may have a claim based on unjustified enrichment, but this is complex and not automatic.

 

Marriage Out of Community of Property With Accrual

 

This applies to couples who signed an ANC that includes the accrual system.

 

  • Each spouse has their own separate estate during the marriage.
  • At divorce, the growth (“accrual”) of each spouse’s estate is compared.
  • The spouse with the smaller accrual has a claim against the other.

 

What happens to the home?

It depends on ownership:

  • If the property is jointly owned, it must be divided as per the title deed (e.g. 50/50).
  • If the property is owned by one spouse only, the value of that property forms part of that spouse’s estate when calculating accrual.
  • The spouse with the larger estate may need to pay the difference, which can result in the home being sold if there aren’t enough funds to settle the accrual claim.

 

2. What if the bond is still being paid off?

 

A home with an outstanding mortgage adds another layer:

 

  • If both spouses are bondholders, both remain liable to the bank until the bond is settled or refinanced.
  • If the property is transferred to one spouse as part of the divorce, that spouse must apply to the bank to take over the bond in their name alone.
  • The bank must approve this — it’s not automatic.

 

3. What if we both want to keep the home?

 

This is where negotiation (and often mediation) becomes essential. Options include:

 

  • One spouse buys out the other.
  • Co-own the home for a period (common where children are involved).
  • Agree to sell only when certain conditions are met (e.g., children reach a specific age).
  • Sell and split the proceeds.
  • Your settlement agreement must record the chosen arrangement clearly.

 

4. When children are involved

 

Where minor children live in the home, the court prioritises their best interests.

This can influence:

 

  • Who keeps the home,
  • Whether the home may be sold immediately,
  • Whether one parent may stay temporarily until children reach a certain age.

 

5. Don’t forget the transfer process

 

If the property needs to be transferred into one spouse’s name:

 

  • A formal transfer must be registered at the Deeds Office.
  • Conveyancers handle the process.
  • Transfer duty may apply (depending on the transaction), but transfers ordered by a divorce decree between spouses are often exempt.

 

6. Final thoughts

 

Divorce and property division can be overwhelming, but understanding your marital regime gives you clarity on your starting point. Every situation is unique, and a well-drafted divorce settlement can prevent costly disputes later.

 

If you’re unsure how your home will be affected, ESI Attorneys can guide you based on your specific circumstances.