Who gets the house in a divorce?

Who gets the house is decided by how you are married, not by whose name is on the title deed and not by who has been paying the bond. Once you know your matrimonial property regime, most of the answer follows.

South Africa has three regimes under the Matrimonial Property Act 88 of 1984: in community of property, out of community of property with accrual, and out of community of property without accrual. If you never signed an antenuptial contract, you are in community of property. Read what an antenuptial contract does if you are unsure which one applies to you.

If you are married in community of property

There is one joint estate and the house forms part of it, even if the title deed names only one of you. On divorce the joint estate is usually divided equally.

In practice that leaves three ways of dealing with the property:

• Sell it and split the net proceeds after the bond and costs are settled.
• One spouse buys out the other's half share, either in cash or by giving up an equivalent value in other assets, such as a pension interest or a vehicle.
• Defer the sale, often until the youngest child finishes school, with the settlement agreement recording who lives there, who pays the bond, rates and insurance in the meantime, and how the proceeds get split later.

The deferred sale is common where the children are settled, but it needs to be drafted carefully. Say what happens if the person living there stops paying, if they remarry, or if the roof needs replacing.

If you are married out of community with accrual

Each of you has your own estate, so the house belongs to whoever is registered as the owner. The other spouse does not become an owner just because the marriage ended.

The growth still gets shared, though. At divorce you compare how much each estate grew during the marriage, and the spouse whose estate grew less has a claim for half the difference. The value of the house, less the bond, forms part of that calculation. So a spouse who does not own the house may still walk away with a substantial money claim that reflects it.

That claim is for money, not for the property itself. It is often settled by one spouse paying the other, or by transferring the house and setting the value off against the claim.

If you are married out of community without accrual

There is no sharing claim. The registered owner keeps the house and the other spouse generally has no claim to it.

There is a narrow exception. For certain marriages out of community of property entered into before the Matrimonial Property Act came into operation, a court has a discretion to order a redistribution of assets where one spouse contributed to the growth of the other's estate. If you were married a long time ago and are told you have no claim at all, ask an attorney specifically whether this applies to you.

The bond is a separate problem

This catches almost everyone. Your divorce order binds you and your spouse. It does not bind the bank.

If both of you signed for the bond, both of you remain liable to the bank until the bond is cancelled or the bank agrees otherwise, no matter what your settlement agreement says. A court order that "the defendant shall be solely responsible for the bond" gives you a claim against your ex if they default. It does not stop the bank coming after you, and it does not stop the arrears appearing on your credit record.

To be properly released, the spouse keeping the house normally has to apply for a new bond in their own name, and they have to qualify for it on their own income. Establish that they can qualify before you agree that they keep the house. If they cannot, selling is often the only realistic option.

Transfer, costs and tax

If the house is transferred from one spouse to the other in terms of a divorce order, a conveyancer attends to the transfer at the Deeds Office. A transfer that happens as a consequence of a divorce order is generally exempt from transfer duty, but conveyancing fees, Deeds Office fees and bond registration or cancellation costs still apply. Agree in the settlement agreement who pays them.

Capital gains tax can arise when the property is eventually sold. Transfers between spouses are treated differently from a sale to an outsider. If the property is worth a lot or has grown substantially in value, get advice from a tax practitioner before you sign, not afterwards.

Who lives there while the divorce runs

Ownership and occupation are different questions, and courts treat them differently.

While a divorce is pending, either spouse can bring an interim application, often called a Rule 43 application in the High Court, asking for interim maintenance, a contribution towards legal costs, interim arrangements for the children, and in some cases occupation of the home. These applications are decided quickly and are designed to hold the position until the divorce is finalised.

Where there is domestic violence, a protection order under the Domestic Violence Act 116 of 1998 can order the abuser to leave the shared home, even if the home is registered in their name. That application is free and is made at any Magistrates' Court. See how to apply for a protection order.

Where the children fit in

The children do not own the house and nobody "gets" the house because they have the children. But the children's need for stable accommodation is a real factor in how a court approaches the overall division, and it is often the reason parties agree to a deferred sale rather than an immediate one.

If money is tight, be honest about whether keeping the house is affordable on one income. Staying in a home you cannot service is a slower version of losing it.