When does a spouse, who is entitled to receive half share in immovable property, become the owner of that half share? Does ownership of the half share vest immediately upon granting of a divorce order or does a spouse acquire a personal right to claim formal transfer in the Deeds registry by virtue of the divorce order? These questions were recently considered and decided upon by our courts, especially where third parties subsequently had an interest in the property of the other spouse.

It is important to understand the nature of our land registration system, a system which evolved with the primary object of giving notice to the public of ownership of land, and of real rights in land.  The Deeds Registries Act represents an attempt to regulate administrative aspects of the registration of land in an orderly, clear, complete and practical way, whilst simultaneously granting landowners substantial protection.  Therefore, registration of title is for the purpose of publicity, a system of public access to the land register reflecting owners of the property and the registration of other protected rights.

Section 16 of the Deeds Registries Act deals with the manner in which real rights (ownership) of land shall be transferred and states:

“Save as otherwise provided in this Act or in any other law the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar…” 

The general rule, therefore, is that derivative acquisition of ownership in land requires an act of registration, except for limited exceptions, such as the acquisition of ownership through succession, prescription or of an interest in land by virtue of a marriage in community of property.  In the latter instance, for example, if the husband owned property and subsequently married in community of property, his wife automatically becomes co-owner of that property and no act of registration is required in terms of the Deeds Registries Act. These exceptions are such laws that clearly form part of what the legislator meant by “Save as otherwise provided in this Act or in any other law”.

In light of the aforementioned, the Court in Corporate Liquidators (Pty) Ltd & another v Wiggill & others 2007 (2) SA 520 (T) affirmed that the Divorce Act was indeed such a law. It held that where parties entered into a settlement agreement regarding the division of their assets, which is subsequently made an order of court, as contemplated in section 7(1) of the Divorce Act 70 of 1979, ownership of immovable property vested immediately and registration of transfer to a spouse was not a prerequisite for ownership.  However, this view was corrected by the Supreme Court of Appeal in Fischer v Ubomi Ushishi Trading & others [2018] ZASCA 154.  The Legislator in the Deeds Registries Act contemplated a law dealing specifically with the transfer of real rights in land when referring to “any other law”. The Divorce Act is thus not such a law as it does not deal with transferring of real rights.  On the contrary, the Deeds Registries Act makes provision for divorce transfers by way of endorsements.

In conclusion, a spouse becomes the owner of the property (or owner of the other spouse’s half share in the property) once a derivative act of registration takes place in the Deeds Registry and not immediately when the divorce order was granted.  The spouse who was granted the property only acquires a personal right to compel transfer of the other spouse’s half share.  Such a personal right shall effectively protect the spouse’s interest in the property against any subsequent claims against his/her former spouse’s creditors until it is formally transferred by way of deed of transfer or endorsement.

It is of paramount importance that should you be divorcing or have divorced and you have such a right as contemplated in the Fischer case, that you exercise the right and have any property you are entitled to in terms of the divorce order registered in your name.

Should you require any further assistance, do not hesitate to contact the ESI team.

Christiaan Lombard

References / Sources:

  • The Deeds Registries Act (Act 47 of 1937)
  • Newall, Newall’s Law and Practice of Deeds Registration
  • Corporate Liquidators (Pty) Ltd & another v Wiggill & others 2007 (2) SA 520 (T)
  • Fischer v Ubomi Ushishi Trading & others (1085/2017) [2018] ZASCA 154

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. Errors and omissions excepted (E&OE)

DIVORCE AND PROPERTY: THE TRANSFER OF IMMOVABLE PROPERTY AFTER A DIVORCE
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