Allen West Conveyancing Update

Where a divorced person deals with immovable property it must first and foremost be ascertained whether such person has the full legal capacity to deal with such property. A divorce court order must be lodged where an owner, who was formerly married out of community of property or whose marriage was governed by the laws of another country, deals with immovable property and is described as divorced. The reason for the lodgement is to determine whether the rights of third parties are affected and whether the terms of the divorce court order, where applicable, have been adhered to. A foreign divorce order does not have to be accepted by the High Court of South Africa, but must adhere to the provisions of Rule 63 of the High Court Rules. 

Where the property being dealt with is property which formerly formed an asset in a joint estate and such joint estate was dissolved by virtue of an order of court, the contractual capacity of such divorced person will depend on the manner in which the assets were divided in terms of the divorce court order. If the divorce court order remains silent with regard to the land in question, it is deemed that the court tacitly gave consent to the division thereof and each spouse is entitled to one half share in the land. However, before such divorced spouse may deal with the one-half share to which he or she is entitled by virtue of the community of property, the provisions of section 45bis (1A) of the Act must be complied with, and if agricultural land is involved, the provisions of the Subdivision of Land Act 70 of 1970 is complied with. 

However, should the court provide that one of the parties in a marriage in community of property is entitled to the whole of the land in question, then the party entitled thereto must firstly take transfer of the share of the former spouse (see Lubbe v O’Dwyer 1942 WLD135). This can be affected either by virtue of a section 45bis application or by a formal deed of transfer. 

A divorce agreement which has been made an order of court can be amended by the parties concerned, provided the interests of third parties are not affected by such amendment (see in this regard Ex Parte Naude 1964 (1) SA 763 and Ex Parte Boshi and Another 1979 (1) SA 249). 

The parties can therefore, irrespective of the award in the divorce agreement, decide after such agreement has been concluded to sell and transfer the property in which case the property may be transferred to the purchaser, without the title firstly being endorsed in terms of section 45bis or 45bis (1A) of the Act. A certified copy of the divorce agreement must be lodged with the Registrar so as to enable him/her to determine whether the interests of third parties are affected by the amending agreement. 

In practice, it often occurs that a divorce court order provides that the defendant shall forfeit benefits without specifying which assets are to be forfeited. It is trite law that the effect of the forfeiture of benefits is that when dissolving the joint estate, the plaintiff may claim one half share of the joint estate, and also the assets that he/she contributed to such joint estate (see Ogle v Ogle (1910) 31 NLR 87). The defendant does not forfeit his/her half share in the joint estate (see Celliers v Celliers 1904 TS 926). However, the defendant will forfeit any financial benefit that he/she derived from the joint estate due to the additional contribution by the plaintiff (see Smith v Smith 1937 WDL 126). Where only the plaintiff applies for an application in terms of section 45bis, and alleges that he/she is entitled to the whole of the property, an affidavit from the former spouse is required or a further Order of Court. 

It is thus clear, as confirmed by Van der Westhuizen v Seide 1957 (4) SA 360 (SWA), that both parties to a joint estate will be entitled to at least one-half share of the estate, where an order grants forfeiture of benefits, except where the order specifically orders otherwise. 

From the case law above, should a divorce court order provide for the forfeiture of benefits, nothing prevents the former spouses from entering into a redistribution agreement of the assets of the joint estate (see section 14(1)(b)(v) of the Deed Registries Act 47 of 1937). By way of example; should the former spouses decide that only one of the spouses must obtain transfer of the land, the transfer can be affected by virtue of an endorsement in terms of section 45bis(1)(a). However, the application will have to be brought by both spouses or proof will have to be submitted that the former spouses entered into the redistribution agreement. 

Similarly, in terms of our common law, nothing prohibits spouses who have divorced and decided on a disposition of immovable property in the divorce agreement to amend or alter their agreement inter partes, provided the rights of third parties are not adversely affected by such amendment (see Ex parte Naude 1964 (1) SA 763 and Ex parte Boshi en ‘n Ander 1979 (1) 249). By way of example; should land be allocated to one spouse in the divorce agreement, such parties may amend the agreement, in order that both parties sell the land, without firstly complying with the provisions of section 45bis(1A) (a) of Act 47 of 1937. The mere fact that both former spouses sign the power of attorney to pass transfer is sufficient proof that the said former spouses have amended their initial divorce agreement. However, a certified copy of the divorce court agreement must be lodged to enable a registrar to ascertain whether the rights of third parties are not adversely affected by the amended agreement. 

Allen West
Tonkin Clacey Pretoria
Tel 012 436 1278 

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