Written by: Eugene van der Walt | Afrikaanse weergawe
For most South African families, the home is the biggest asset they own together. When a marriage breaks down, the question of what happens to that home is often the most contested and most emotional issue in the entire divorce. The answer depends heavily on how you were married.
Step One: How Were You Married?
There are three matrimonial property regimes and each one produces a different outcome when it comes to dividing the family home. If you are unsure which regime applies to you, the answer is usually in your antenuptial contract or, if you never signed one, you are married in community of property by default.
Married in Community of Property
If you married without an antenuptial contract, all assets and liabilities that either spouse owned before the marriage or acquired during it fall into a single joint estate. The family home, regardless of whose name appears on the title deed, belongs equally to both spouses.
On divorce, the joint estate must be divided equally. This does not always mean the house is sold. The parties may agree that one spouse buys out the other’s half share, that the house is transferred to one spouse as part of a broader settlement, or that it is sold and the proceeds are split. If no agreement can be reached, either party can approach the court to order a division of the joint estate, which may include an order for the sale of the property.
One important point: neither spouse may sell, mortgage or otherwise deal with immovable property in the joint estate without the other’s written consent. This applies during the marriage and continues until a final order of divorce is granted.
Married Out of Community of Property with Accrual
This is the most common matrimonial regime in South Africa for couples who do sign an antenuptial contract. Each spouse keeps their own estate during the marriage but on divorce, the growth in each estate is shared equally through what is called the accrual system.
The accrual is calculated by comparing each spouse’s estate at the start of the marriage to its value at the end. The spouse whose estate grew more is entitled to pay the other spouse half the difference. The family home forms part of this calculation if it was acquired during the marriage.
So if the home was bought during the marriage and registered in one spouse’s name, it still feeds into the accrual calculation. The other spouse may not have a direct claim to the property itself but will have a monetary accrual claim that takes its value into account. Whether the house is sold, transferred or retained by one party is then a matter for negotiation or court order, with the accrual claim settled as part of the overall divorce.
Married Out of Community of Property without Accrual
Where a couple is married out of community of property and the antenuptial contract specifically excludes the accrual system, each spouse keeps what is in their own name. There is no sharing of growth. If the home is registered in one spouse’s name alone, that spouse owns it outright and the other has no direct claim to it on divorce.
This can produce outcomes that feel deeply unfair, particularly where one spouse stayed home to raise children while the other built up assets. The court does have limited discretion in exceptional circumstances to depart from the strict terms of the regime, but this is rare and difficult to establish. The practical lesson here is that what you sign before marriage has long-term consequences that many couples do not fully appreciate at the time.
Who Gets to Stay in the House While the Divorce is Pending?
Divorce proceedings can take months or even years. The question of who lives in the family home during that period is separate from the question of who ultimately gets it and it matters enormously, especially where children are involved.
Either party may apply to court for what is called Rule 43 relief, which allows the court to make interim orders pending the finalisation of the divorce.
These orders can include:
- An order that one spouse be allowed to remain in the family home and the other be required to vacate.
- Interim maintenance for a spouse and the minor children.
- An order regarding the care and primary residence of the children pending the divorce.
- A contribution toward legal costs for the financially weaker spouse.
The court determines who stays in the home on an interim basis by weighing up the interests of the children, the respective financial positions of the parties and which outcome is most practical and equitable in the circumstances. The fact that the home is registered in one spouse’s name does not automatically mean that spouse gets to stay.
A spouse who is asked to vacate but refuses may face a contempt of court application if an order has already been made. Conversely a spouse who leaves voluntarily does not lose their property rights by doing so.
Can a Spouse Be Removed Urgently?
Where there is domestic violence, abuse or a serious threat to the safety of a spouse or the children, an urgent Protection Order can be obtained. This order can require the abusive spouse to immediately vacate the family home regardless of who owns it. A breach of a Protection Order is a criminal offence.
The court also has the power in truly urgent divorce matters to grant an interim interdict preventing a spouse from disposing of or encumbering the family home while proceedings are pending.
The Practical Reality
Most divorces involving a family home ultimately settle by agreement rather than by court order. A negotiated settlement is almost always cheaper, faster and less damaging to the family than contested litigation. What the law does, however, is define each party’s rights and leverage. Understanding those rights before you negotiate puts you in a far stronger position.
Van der Walt and Associates Inc assists clients with divorce, Rule 43 applications, settlement agreements and all aspects of family law. Contact us for an initial consultation.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.