Divorce can be complex and hard but before you think of selling your house, perhaps you need to consider the implications involved prior selling.
Last week, the Constitutional Court ruled that couples married in customary law are married in community of property and cannot enter into a antenuptial contract at a later stage. This means any kind of contract entered into after the customary marriage is null and void. According to the court, if a couple is already married under customary law, they cannot later change their property system simply by signing an antenuptial contract, even if they subsequently enter into a civil marriage.
This means even civil marriages entered into post lobola will automatically be in community of property where all assets are shared equally at the time of divorce.
While it might feel like you need to get all the divorce proceedings done immediately, you shouldn’t rush property decisions. Whether you’re considering selling, buying out the other partner, or keeping the property, it is essential that you understand the options so that you make the right financial decision and create a clearer path forward, says Adrian Goslett, CEO and regional director of REMAX Southern Africa.
“When it comes to approaching the property side of a separation, usually the best option depends on a range of factors, such as affordability, bond obligations, the presence of children, and whether one or both parties want to keep the home long-term,” said Goslett.
The first option is selling the property and then splitting the profits.
Gosett said this is often the most straight forward option, especially when neither party can financially afford the property alone, or when both want a clear financial separation.
Selling the property can allow both parties to settle any outstanding bond, divide any equity fairly, and have a fresh start with fewer shared financial ties.
Goslett advises that the timing of the sale is important.
“It’s crucial that you take your time when selling a property as rushed sales can sometimes lead to lower offers, particularly if the property is not prepared or priced correctly. Working with an experienced property professional can help ensure the home is positioned well and sold at fair value,” said Goslett.
Another possibility is for one spouse or partner to buy out the other. This option is often considered when one party wants stability, especially if children are involved and staying in the same environment feels like the best solution.
In a buyout arrangement, the person keeping the property usually compensates the other for their share of the equity.
“However, buyouts require careful financial consideration. The remaining owner must qualify for the bond in their own name, and the property may still need to be formally transferred into their name through a conveyancer and registered at the Deeds Office.
“It’s also important to factor in the full cost of ownership, including conveyancing and potential transfer costs, along with the ongoing expenses of ownership such as rates and taxes, levies, maintenance, and insurance,” warned Goslett.
The third option is keeping the property jointly, at least for a short period of time. Most couple do this when the market for selling isn’t favourable.
Goslett said this approach requires clear communication and legal agreements as both parties remain financially tied to the home and disagreements can arise over who pays for what. If the relationship is strained, keeping the property jointly can prolong conflict.
“A property practitioner can provide neutral, practical advice about market value, selling timeframes, and what options are realistic. This helps bring clarity into a situation that can feel very uncertain,” said Goslett.
