A Property24 reader says he was married in community of property. He and his wife are now divorced and both possession of decree of divorce and shared properties through settlement via court.
"I retained the house, and my ex-wife retained the car and half of my pension, now I want to know how do I go about removing her name on the deed because I am still paying the bond on the house. Please advise."
Linda Jordaan, attorney and conveyancer at Herold Gie Attorneys shares the following advice:
The terms of your divorce order need to be given effect to with regards to the immovable property, and this aspect of the transaction is attended to by a qualified Conveyancer and property attorney.
The property transaction and the transaction relating to the mortgage bond registered over the property will be dealt with together and both transactions will be registered simultaneously at the Deeds Office for the area in which your property is situated.
As you were married in community of property, you are already an owner of a half share in the property by virtue of your marriage. The party who was awarded the immovable property in accordance with the terms of the divorce order, will acquire the other half share of the property from the ex-spouse. This transaction takes place by way of an application in terms of Section 45bis(1) of the Deeds Registries Act 47 of 1937, and the party who acquires the property will need to sign the application, which is lodged in the Deeds Office for registration. A certified copy of the divorce order is lodged with the application in the Deeds Office, in support of such application. On successful registration of the application, the current Title Deed for the property will be endorsed by the Registrar of Deeds to reflect the change in ownership of the property.
The transaction is exempt from transfer duty, and the Conveyancer attending to the transaction will make application to the South African Revenue Services for an exemption receipt for lodgement with the Section 45bis(1) application in the Deeds Office. In addition, application will be made for a rates clearance certificate from the relevant local authority, which certificate is also lodged with the application. The attorney attending to the matter will also check the divorce order for any other special conditions relating to the property, which need to be complied with on or before registration of the property transaction.
The bond currently registered over the property may either be cancelled, or the party acquiring the property may be substituted as sole debtor under the bond. If the bond is to be cancelled, any outstanding balance on the bond account will need to be settled and the Bank, once requested, will instruct its attorneys to proceed with the cancellation thereof. Alternatively, if you elect to retain the bond over the property and to be substituted as sole debtor under such bond, you will need to make application to your Bank. The Bank will do the necessary credit checks and process the application for substitution in accordance with its requirements. If such application is successful, the Bank will instruct its attorney to attend to the matter and the relevant documentation will be prepared for signature.
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