Selling a house during or after divorce

Every divorce property question follows from one fact: how you are married. For a civil marriage there are three regimes, and they answer "who owns the house" and "who signs" differently. Customary, religious and other unions may follow different rules (the Divorce Act has its own words for Muslim marriages in sections 7(3A) and 9(1), for example), so ask an attorney which apply to you.

In community of property is the default. Marry without an antenuptial contract and you are in community, and the house falls into a single joint estate owned by both of you, no matter whose name is on the title deed or who paid the bond. At divorce the joint estate is divided between you. The Matrimonial Property Act's own wording for a court-ordered division during the marriage is equal shares or another basis the court thinks just (section 20(1)), and under section 9 of the Divorce Act a court can order that one spouse forfeits the patrimonial benefits of the marriage to the other, wholly or in part, if the other would otherwise be unduly benefited. What that means for you is for your attorney.

Out of community of property means you signed an antenuptial contract before the wedding. Under section 2 of the Matrimonial Property Act, a contract that excludes community of property and community of profit and loss, for a marriage entered into after the Act began on 1 November 1984, brings the accrual system with it unless the contract expressly excludes it. So the words to look for in your contract are the ones that exclude accrual. With accrual, the spouse whose estate grew less acquires a claim at dissolution for half the difference between the two accruals. That is a money claim against the other spouse, not a claim to the house. Without accrual, the two estates stay entirely separate.

The signing rule comes from the Matrimonial Property Act. On our reading of the Department of Justice's consolidated text (a copy downloaded in May 2025, read on 20 October 2026), section 15(2)(a) and (b) say a spouse married in community may not sell immovable property in the joint estate, or sign a contract to sell it, without the other spouse's written consent. Section 15(5) says that consent must be given separately for each act and attested by two competent witnesses. The consent rules sit in the Act's chapter on marriages in community of property, which is why they do not reach a marriage out of community. An attorney should confirm how they apply to you, and whether a later amendment changes them.

• While a divorce is pending, your protection differs by regime. In community, your spouse may not sell the house without your written consent (section 15(2)), unless a court gives leave (see "If your spouse refuses to sign"), though a buyer who did not know and could not reasonably know is protected (see "If a spouse sells without your consent"). Out of community with accrual, the owner can sell their own property, and a statutory remedy is section 8 of the Matrimonial Property Act: a court can order the immediate division of the accrual where your right to share in it is being, or will probably be, seriously prejudiced by the other spouse's conduct. Section 20 does the same for a joint estate.
• Out of community without accrual: whether a court can move assets to you is unsettled. Where there is no agreement on dividing assets, section 7(3) of the Divorce Act lets a court order one spouse's assets transferred to the other who contributed to their estate (section 7(4)), but the copy we read (downloaded in May 2025) limits it to older marriages, such as those under an antenuptial contract made before 1 November 1984. On 10 October 2023 the Constitutional Court found that cut-off invalid (EB v ER; KG v Minister of Home Affairs [2023] ZACC 32) and, says its media summary, suspended the declaration for 24 months, reading the exclusion out meanwhile. The General (Family) Laws Amendment Bill (B20-2025) would provide for transfers in a marriage out of community of property regardless of when it was entered into; as at 20 October 2026 Parliament's tracker lists only its introduction as done. Take advice rather than assuming either way.

Married in community of property. You may not sell without your spouse's written consent, but a refusal does not end the matter. Section 16(1) of the Matrimonial Property Act lets a court, on your application, give you leave to enter the transaction without the consent. The court has to be satisfied that the spouse is withholding it unreasonably or, where the consent cannot be obtained for any other reason, that there is good reason to dispense with it. What is unreasonable is for the court to decide on your facts. It is an application to court, so it costs money and takes time, and it is a matter for an attorney.

Married out of community of property. There is no spousal consent to refuse. If only one name is on the title deed, that owner signs. If both names are on the deed, you are co-owners and both of you must sign as co-owners.

Already divorced, and both on the deed. Ex-spouses who hold the house together can still disagree about what to do with it. The Supreme Court of Appeal has described the common-law remedy for co-owners who cannot agree, the actio communi dividundo: in what it calls free co-ownership, a co-owner may ask a court to end the co-ownership, but where the co-ownership comes from another relationship, such as a marriage in community of property, no division can be requested while that relationship lasts (Municipal Employees' Pension Fund v Chrisal Investments [2020] ZASCA 116, paragraphs 20 and 24). We have not found a source we can cite for how a court usually divides a house between ex-spouses who cannot agree, or whether it orders a sale, so an attorney should advise. It is an application to court either way, and agreement avoids that cost.

A signing deadline in the settlement. A settlement often says each of you will sign the sale documents within a stated time. That turns a later refusal into a breach of something written, not a fresh argument. The section on what a settlement agreement usually covers, below, lists more.

Married in community of property. A sale of the house without your written consent is contrary to section 15(2). The Act then looks at the buyer before it looks at you. Under section 15(9)(a), where the buyer did not know and could not reasonably know that the sale was contrary to the Act, the consent is deemed to have been given. Under section 15(9)(b), where your spouse knew or ought reasonably to have known that they would probably not get your consent, and the joint estate suffers a loss, an adjustment is made in your favour when the joint estate is divided. A buyer who knew, or could reasonably have known, does not get the deeming rule. What follows then is for your attorney.

No fixing it later at the Deeds Office. Section 15(4) lets consent for some acts be given afterwards, by ratification within a reasonable time, but not where the consent is required for the registration of a deed in a deeds registry. So the consent has to exist before the sale is lodged.

If you fear a sale. A court can act before it happens. Section 16(2) lets a court that is satisfied it is essential for the protection of your interest in the joint estate suspend a power the other spouse has under that chapter. Section 20 allows an immediate division of the joint estate where your interest is being, or will probably be, seriously prejudiced by the other spouse's conduct or proposed conduct. These are court orders, not letters, and they need an attorney.

Married out of community of property. The owner does not need your consent, so the rules above do not apply to you. What you hold is a claim, and the next section shows how far a court has let it reach.

If the house is going to a third party, the sale does not have to wait for the decree. Where the house is in the joint estate or both names are on the deed, both spouses sign the sale agreement as sellers, the sale runs on the ordinary conveyancing timeline, and the net proceeds are split as you agree. Selling first often simplifies the divorce, because a cash figure is far easier to divide than a house. Where you are married in community, the written consent is part of the paperwork, and the conveyancer is the person to ask about preparing it with the sale. Our guide to the offer to purchase covers when a signed offer binds both sides.

Where the money goes. The conveyancer who transfers the property receives the purchase price. Whether they will hold your net proceeds in their trust account until both of you have signed a written instruction on how to split them, or until a court has ruled, and on what terms, is for them to say. Couples often settle it before the offer is signed.

The price. A price one spouse thinks is too low is how a sale turns into a dispute, so the two of you need a value you both trust before listing. Our guide to pricing your house covers independent evidence of value.

Who lives there meanwhile. A settlement usually says who pays the bond, rates and levies until transfer, and what happens if they stop. Once there is a buyer, occupation dates matter too, and occupational rent explains early occupation and occupation after transfer.

If you are the owner and married out of community. You can sell your own property, and a pending accrual claim did not stop the buyers in Muller and Another v Masureik and Others [2026] ZASCA 01 (8 January 2026). The husband, the sole registered owner, sold the family home while a divorce, begun in 2010, was still pending. They were married out of community with accrual. On an application to reconsider an earlier refusal of leave to appeal, the Supreme Court of Appeal confirmed the refusal, so the buyers' eviction order stood. It said the wife held a contingent right to share in the accrual when the marriage ends, not a vested right to his assets and not a general right to stop him dealing with his own property, so the doctrine of notice could not help her. The High Court found no collusion, and the judges split on the form of the order, not on the result for the wife. It decides a narrow question on its facts. Where a spouse suspects a sale is meant to defeat an accrual claim, section 8 of the Matrimonial Property Act is the provision that lets a court order the immediate division of the accrual, and it is a matter for a court.

The most expensive misunderstanding in divorce conveyancing is believing the order does the work. It does not. In Fischer v Ubomi Ushishi Trading and Others [2018] ZASCA 154 the Supreme Court of Appeal held that ownership of land acquired from another person passes only on registration at the Deeds Office. The Divorce Act only lets a court make an order about dividing the assets, and it is not a law that transfers real rights in land. A settlement agreement made an order of court gives you a personal right to compel your ex-spouse to transfer the property. It does not make you the owner.

Until a conveyancer registers the change, the Deeds Office still records your ex-spouse as a co-owner. In Fischer, a creditor with a judgment against the ex-husband applied in 2015, three years after the 2012 divorce, to have his half share declared executable, because the register still showed him as a co-owner. The ex-wife kept the house, but on a narrower ground than the one she first argued. The court did not accept that the order had made her the owner. It held instead that her personal right to have the share transferred came before the creditor's claim, that no greater or competing right existed when she acquired it, and that nothing suggested the settlement was meant to defeat creditors.

Nothing makes the change happen by itself, which is exactly why it gets left. Registration is what ends the exposure. Relying on an earlier personal right, as the ex-wife in Fischer had to, is the harder way.

There are three routes, and the cost gap between them is wider than most people expect.

Sell to a third party. Where the house is in the joint estate or both names are on the deed, both spouses sign the agreement as sellers. The buyer carries transfer duty and, under the usual offer to purchase, the transfer costs, and the net proceeds are split as the settlement agreement directs. Neither of you has to qualify for a bond.

Transfer to one spouse. The spouse keeping the house takes the other's share. Where you were married in community of property, the route Fischer describes is an endorsement of the existing title deed under section 45bis(1)(a) of the Deeds Registries Act, not a fresh deed of transfer. Where you were married out of community and the property moves from one name to another, it is an ordinary transfer.

Transfer now, sell later. If the spouse who keeps the house sells it a few years on, that is a second conveyance, with its own duty and fees. On the usual terms the later buyer pays those.

An endorsement is not free. The Law Society of South Africa's conveyancing fee guideline (effective 1 July 2026) charges a section 45bis fee on 75% of the full value of the whole property, on the same scale as a transfer. The table works it out for an example home. Conveyancing fees are negotiable and the guideline says so expressly: it sets no minimum or maximum. A written quote from the conveyancer is what settles the figure.

• The endorsement figure is for a home in community of property. A transfer between spouses married out of community falls under the guideline's ordinary transfer item, charged on the value transferred, and a transfer of only part of a property is a different calculation. The conveyancer's quote settles it.
• The later sale in the last row would happen at a later value, so its duty and fee would be different. The point is that it is a second conveyance, not the exact figure.
• Deeds Office fees, and the cost of registering any new bond, are extra. Transfer duty and the transfer costs shows what each is.

A divorce order or a settlement agreement is not an agreement with the bank. Where a bond is registered over the property and one spouse is to keep it, the bank has to agree to release the other from the debt. That is a substitution of debtor. Standard Bank's own page on changing a bond holder says substitutions are processed as new loan applications, which involve an affordability assessment. It says you need an attorney for the Deeds Office side, and it asks for a substitution form and either the final divorce order and consent papers or the settlement agreement. We read only that bank's page. Other banks may ask for different papers or apply different rules, so ask yours.

So the question that decides the outcome is not who wants the house. It is whether that spouse qualifies for the whole bond on one income. If they do not, the settlement agreement has to fall back to a sale.

Where the property is bonded, the Deeds Office has requirements of its own for an endorsement or a transfer. The conveyancer will confirm what they are for your property. From the bank's side, who owns the house and who owes the bank are separate questions, and the substitution process above is how a bank agrees to release one spouse.

A bond pre-approval or a written substitution decision from the bank is worth having before the settlement agreement is signed rather than after, because the agreement then rests on an answer instead of a hope. A bond originator can also tell the spouse who wants the house what the banks are likely to lend on one income. If the answer is no, the alternative is a sale of the bonded property. Cancelling a bond when you sell covers the notice banks ask for and the early termination charge, and the notice is worth giving early.

Section 9(1)(i) of the Transfer Duty Act exempts a divorced spouse who acquires the sole ownership of property, or a portion of it, registered in the name of their divorced spouse, where it is transferred to them as a result of the dissolution of the marriage. We take the wording from SARS's Transfer Duty Guide (8.2.7), which quotes the section as amended with effect from 25 July 2006. Since then it applies whatever the marriage regime. SARS's scenarios page gives the example of a divorce order dated 20 April 2006, which was not exempt because it came before 25 July 2006.

The guide's examples add three things. The exemption can apply where the receiving spouse pays for the other's share, as long as that is the arrangement in the settlement. It does not apply if the transferee is anyone other than the former spouse, or if the transferring spouse keeps a portion. And it covers the transfer set out in the court order or settlement agreement drafted before the divorce is finalised.

SARS's guide says two things about a deal made later. In 8.2.7 it says the exemption will not apply to a subsequent agreement reached after the court order, unless a further settlement agreement is made an order of court and carries the court's stamp. In 4.3.2, on the date of acquisition, it says that where a property was not dealt with in the order and the parties settle it afterwards, the exemption still applies. We cannot tell you which one a SARS official will follow. The guide's own wording points to putting the property terms in the settlement agreement and order before the divorce is granted and, for a change made later, to a further settlement agreement made an order of court that carries the court's stamp. How a family law attorney obtains that order after a decree has been granted is for them to say.

A home in a trust. The section speaks of property "registered in the name of" the divorced spouse. SARS's examples deal with a spouse's own property and with a spouse's interest in a close corporation that owns a home. They do not deal with a house registered in the name of a trust, so we cannot say the exemption reaches one. If your home is in a trust, ask your conveyancer before you plan around it.

Your conveyancer deals with SARS on the transfer duty side and can say what they will lodge with the declaration. And exempt from duty is not the same as free. The receiving spouse still pays the conveyancer, the Deeds Office registration fee, and the cost of registering any new bond.

A transfer to a spouse in consequence of a divorce order is a roll-over under section 9HB of the Income Tax Act. SARS Interpretation Note 134 says the roll-over is mandatory: you cannot elect out of it. The spouse handing the property over disregards any capital gain or capital loss, so nothing is taxed at the time of the transfer.

What the receiving spouse takes on is the property's entire tax history. The same note sets it out: the transferee is treated as having acquired the asset on the same date, for the same expenditure, and as having used it in the same way as the transferor.

That leads to the trap. Money you pay your ex-spouse for their share is disregarded. Pay R900 000 to buy out a half share in a house that originally cost R1 400 000 and your base cost is still R1 400 000. You have not bought yourself R900 000 of base cost. The gain is deferred to the day you sell, and by then it is all yours.

There is a second point worth understanding before you choose. Spouses who each own half of the home they live in share one primary residence exclusion, so each sets R1 500 000 against their own half of the gain, where one owner would set the whole R3 000 000 against all of it. The totals come out the same. What differs is that two people have two annual exclusions and two sets of marginal rates. The amounts are the ones the 2026 Budget Review proposed for sales from 1 March 2026 (Table 4.6, page 41). Our capital gains tax guide explains how SARS applies the exclusion between co-owners and what we have not confirmed about those amounts.

• "Left in the CGT net" is before the inclusion rate: only part of that amount is added to taxable income, and the capital gains tax guide shows how much.
• The second column holds the sale price constant so the exclusions are comparable. In reality the house keeps growing in value between the transfer and the later sale, and that growth also lands on one person.
• Both columns assume the house was a primary residence throughout. The spouse who moves out during a long separation may not get full primary residence relief for that period.
• Where the gain is large, or the person receiving the house is not a South African tax resident, a tax practitioner is worth involving before anything is signed. Interpretation Note 134 says the roll-over does not apply when the asset goes to a spouse who is not a resident, unless the asset is one the law names, which includes immovable property in South Africa. A house here is the kind of asset that exception names, but the position for a non-resident is not simple, so ask before you sign.

• The property, identified properly: erf number, township and title deed number, not just a street address.
• Who transfers to whom, or that it will be sold. If it is to be sold, a settlement often names the minimum price, who markets it, and by when.
• Where the sale money goes. Each spouse's share of the net proceeds, and whether the conveyancer will hold the money until both of you have signed an instruction, which is a question for the conveyancer before signing.
• Every cost, by name: conveyancing, compliance certificates, rates and levy clearance figures, bond cancellation and any early-termination interest.
• A deadline and a fallback. If the bank declines the substitution of debtor by a stated date, the house is sold. Without a fallback, a declined application puts the parties back in court. A date by which each of you signs the sale documents belongs here too.
• Occupation: who lives in the house until transfer, who pays the bond, rates and levies meanwhile, and what happens if they stop.
• Made an order of court before the divorce is granted. Section 7(1) of the Divorce Act lets a court granting a decree make an order dividing the assets in accordance with a written agreement. SARS's guide ties the transfer duty exemption to terms set out in the order or settlement, and section 9HB speaks of a transfer in consequence of a divorce order. A family law attorney can check the terms against both.

Nobody in this process does everything. This is who to go to for which part.

• This is general information, not legal or tax advice, and Privately does not give either. We read the sources listed below in October 2026, and the law can change. A family law attorney would normally draft the settlement agreement, and a conveyancer would check the property mechanics before signing. Correcting an agreement after it has become an order of court is harder than getting it right the first time.