---
title: "Selling a house during or after divorce"
description: "How your marital property regime decides who must sign, why a divorce order does not move the house on its own, transfer duty and CGT on transfers between ex-spouses, and how to sequence the sale."
url: "https://privately.co.za/guides/selling-a-house-during-divorce-south-africa"
country: "South Africa"
updated: "2026-08-29"
published: "2026-08-29"
author: "Chandre Niemand"
source: "Privately"
---

# Selling a house during or after divorce

*Chandre Niemand, Founder, Privately. Published: 2026-08-29.*

## Summary

Your marital property regime decides who owns the house and who has to sign. Married in community of property, the house is part of one joint estate and both spouses must sign the sale agreement whatever the title deed says; married out of community, only the registered owner signs. A divorce order does not move the property on its own: ownership changes only when a conveyancer registers an endorsement or a transfer at the Deeds Office, and a transfer between ex-spouses that flows from the divorce order is exempt from transfer duty and rolls over for capital gains tax.

## Start with the marital property regime

Every divorce property question follows from one fact: how you are married. South Africa has three regimes, and they answer "who owns the house" differently.

**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.

**Out of community of property** means you signed an antenuptial contract before the wedding. 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.

- **While a divorce is pending, your protection differs by regime.** In community, section 15 consent means your spouse simply cannot sell the house without you. Out of community with accrual, they can sell their own property freely, and your remedy is section 8 of the Matrimonial Property Act: a court can order the immediate division of the accrual where your right to share is being seriously prejudiced. Section 20 does the same for a joint estate.
- **Out of community without accrual is no longer the dead end it was.** In EB (born S) v ER (born B); KG v Minister of Home Affairs [2023] ZACC 32 the Constitutional Court held it unconstitutional to limit redistribution orders under section 7(3) of the Divorce Act to marriages concluded before 1 November 1984. A spouse who contributed to the growth of the other's estate can now ask the court to redistribute assets, including the house, whatever the date of the marriage, though the contribution has to be proved. Parliament's corrective bill, introduced in August 2025, has not been enacted, so this rests on the judgment. Take advice rather than assuming either way.

**Who owns the house, and who has to sign**

| Marital regime | Who owns the house | Who must sign a sale | How a share moves to one spouse |
| --- | --- | --- | --- |
| In community of property | Both spouses, as one joint estate | Both. Section 15(2)(b) of the Matrimonial Property Act requires the other spouse's written consent, attested by two competent witnesses, for each transaction | An endorsement on the existing title deed under section 45bis(1)(a) of the Deeds Registries Act |
| Out of community, with accrual | Whoever the deed names, often one spouse, sometimes both in undivided shares | Only the registered owner or owners. No spousal consent is required | An ordinary deed of transfer drawn by a conveyancer |
| Out of community, without accrual | Whoever the deed names | Only the registered owner or owners | An ordinary deed of transfer drawn by a conveyancer |

## A divorce order does not move the house

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 passes only on registration, and that the Divorce Act 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, and their creditors can attach that half share. That is what happened in Fischer: a judgment creditor applied years after the divorce to have the ex-husband's half share declared executable, and the ex-wife had to fight to the Supreme Court of Appeal to keep the house. She won, but only because her personal right came first in time.

The Deeds Registries Act sets no deadline for registering the change, which is precisely why it gets left. Register it.

## Sell it, or transfer it to one spouse

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

**Sell to a third party.** Both spouses sign the sale agreement as sellers, the buyer carries [transfer duty and the transfer costs](/guides/transfer-duty-and-transfer-costs), and the net proceeds are split as the settlement agreement directs. One conveyancing transaction, one set of fees, and 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, that is done by endorsing the existing title deed under section 45bis(1)(a) rather than drawing 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.

An endorsement is quicker than a full transfer, but it is not cheap. The Law Society of South Africa's conveyancing fee guideline recommends that a section 45bis fee be calculated on 75% of the full value of the whole property, on the same scale as a transfer. On a R2 000 000 home that is an estimated R30 000 to R40 000 including VAT. Conveyancing fees are negotiable, and the guideline says so expressly, so get a written quote.

And if the spouse who keeps the house sells it two years later, that is a second full conveyancing bill on top. Where neither of you intends to stay, selling once is materially cheaper.

## The bond decides more than the settlement agreement does

A divorce order does not bind 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, and Standard Bank's published guidance is blunt about it: substitutions are processed as new loan applications, with a full affordability assessment. The National Credit Act requires that assessment for any new credit agreement, so the other banks work the same way.

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. Many do not, and the settlement agreement then has to fall back to a sale.

Section 45bis(2) enforces the same logic at the Deeds Office. Where the property is bonded, the endorsement cannot go through unless the bond is cancelled, the property is released from it, or both former spouses consent in writing to remaining liable under it. That last option is not a solution. It leaves the departing spouse liable for a debt secured by a house they no longer own.

Get a [bond pre-approval](/guides/bond-pre-approval-south-africa) or a written substitution decision from the bank before the settlement agreement is signed, not after. If the answer is no, plan the [sale of a bonded property](/guides/selling-a-house-with-a-bond-south-africa) instead, and give the bank its 90 days' notice of cancellation as soon as you list.

## Transfer duty is exempt when it flows from the order

Section 9(1)(i) of the Transfer Duty Act exempts a divorced spouse who acquires sole ownership of property registered in the name of their divorced spouse, where that property is transferred as a result of the dissolution of the marriage. The section turns on the transfer being a consequence of the divorce, not on which regime you were married under.

In practice the conveyancer lodges the divorce order and the settlement agreement with the transfer duty declaration to SARS, which issues an exemption receipt. That receipt is what allows the Deeds Office to register the change.

The corollary is the part that costs people money. A private arrangement about the house that the two of you reach afterwards, outside the order, is not obviously a transfer resulting from the dissolution of the marriage. If you want the exemption, get the property terms into the settlement agreement and get that agreement made an order of court under section 7(1) of the Divorce Act.

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.

## Capital gains tax: deferred, not forgiven

A transfer to a spouse in consequence of a divorce order is a roll-over under section 9HB of the Income Tax Act. The spouse handing the property over disregards any capital gain or loss. Nothing is taxed at the time of the transfer.

What the receiving spouse takes on is the property's entire tax history. SARS Interpretation Note 134 sets it out: the transferee is deemed to have acquired the asset on the same date, for the same expenditure, and to have 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. The primary residence exclusion is apportioned between owners in proportion to their interests, so two spouses who each hold half a home get R1 500 000 each, not R3 000 000 each. The totals come out the same. What differs is that two people have two annual exclusions and two sets of marginal rates.

- 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 one of you is no longer a South African tax resident, get a tax practitioner in before you sign. The mechanics are covered in the [capital gains tax guide](/guides/capital-gains-tax-property-south-africa).

**Capital gains tax on a home bought for R2 000 000 and sold for R7 000 000**

| What is counted | Sold jointly by both spouses | Transferred to one spouse, sold later |
| --- | --- | --- |
| Capital gain | R2 500 000 each | R5 000 000 |
| Primary residence exclusion | R1 500 000 each | R3 000 000 |
| Annual exclusion | R50 000 each | R50 000 |
| Left in the CGT net | R950 000 each, R1 900 000 in total | R1 950 000 |

## What the settlement agreement must say

- **Identify the property properly**: erf number, township and title deed number, not just a street address.
- **Say who transfers to whom, or that it will be sold**, and if it is to be sold, at what minimum price, who markets it, and by when.
- **Allocate every cost by name**: conveyancing, [compliance certificates](/guides/compliance-certificates-when-selling-a-house), rates and levy clearance figures, bond cancellation and any early-termination interest.
- **Set 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 you back in court.
- **Deal with occupation**: who lives in the house until transfer, who pays the bond, rates and levies meanwhile, and what happens if they stop.
- **Get the agreement made an order of court.** That is what carries the transfer duty exemption and the section 9HB roll-over.

## Sequencing, and when to get help

If the house is going to a third party, there is no reason to wait for the decree. Both spouses sign the sale agreement, the sale runs on the ordinary [conveyancing timeline](/guides/conveyancing-and-the-transfer-process), and the conveyancer holds the proceeds and splits them as agreed. Selling first often simplifies the divorce itself, because a cash figure is far easier to divide than a house.

If you are already divorced and cannot agree, you are not stuck. Ex-spouses holding undivided half shares can each approach a court to end the co-ownership under the actio communi dividundo, which normally results in a sale with the proceeds divided, and a court can appoint a receiver or liquidator to divide a joint estate where the parties will not. Both routes are slow and expensive. Agreement is cheaper than either.

This is general information, not legal or tax advice. Have a family law attorney draft the settlement agreement and a conveyancer check the property mechanics before you sign. Correcting it after it has become an order of court is far harder than getting it right the first time.

## Frequently asked questions

### Who has to sign when a house is sold during a divorce in South Africa?

If you are married in community of property, both spouses must sign. Section 15(2)(b) of the Matrimonial Property Act requires the other spouse's written consent, attested by two competent witnesses, for each transaction involving immovable property in the joint estate, and it applies no matter whose name is on the title deed. If you are married out of community of property, with or without accrual, only the registered owner signs. Where the deed names both of you as co-owners, both sign as co-owners.

### Does a divorce order transfer the house into my name?

No. In Fischer v Ubomi Ushishi Trading and Others [2018] ZASCA 154 the Supreme Court of Appeal held that ownership of land passes only on registration at the Deeds Office. A settlement agreement made an order of court gives you a personal right to compel the transfer, not ownership. Until a conveyancer registers the endorsement or the transfer, your ex-spouse remains a registered co-owner and their creditors can attach that share.

### Do you pay transfer duty when a house is transferred to one spouse after divorce?

No. Section 9(1)(i) of the Transfer Duty Act exempts a divorced spouse who acquires sole ownership of property registered in the name of their divorced spouse, where the transfer results from the dissolution of the marriage. The conveyancer lodges the divorce order with the transfer duty declaration and SARS issues an exemption receipt. The exemption depends on the transfer flowing from the order, so the property terms need to be in the settlement agreement that was made an order of court. Conveyancing fees and Deeds Office fees are still payable.

### Do you pay capital gains tax when you transfer a house to your ex-spouse?

Not at the time of the transfer. Section 9HB of the Income Tax Act rolls the gain over where the property is transferred in consequence of a divorce order: the transferring spouse disregards the gain or loss, and the receiving spouse is deemed to have acquired the property on the same date and for the same expenditure. Any money paid for the share is disregarded, so a cash buyout does not increase your base cost. The tax is deferred to the eventual sale, not cancelled.

### Can I take over the bond in my own name after a divorce?

Only if the bank agrees. It is called a substitution of debtor and the banks assess it as a new loan application, with a full affordability and credit check on the remaining borrower alone. If you do not qualify on your own income, the bond cannot simply be left in both names as a workaround: section 45bis(2) of the Deeds Registries Act requires the bond to be cancelled, the property released, or both former spouses to consent in writing to remaining liable. Get the bank's answer before the settlement agreement is signed.

### Is it better to sell the house before or after the divorce is finalised?

Selling before is usually simpler and cheaper. Both spouses sign as sellers, the buyer carries the transfer costs, the proceeds become a cash figure that is easy to divide, and nobody has to qualify for a bond. Transferring the house to one spouse and selling it later means paying for two conveyancing transactions and concentrating the whole capital gain in one person's hands. Transferring makes sense when one of you genuinely intends to stay and can carry the bond alone.

### Can I be forced to sell the house in a divorce?

Effectively, yes. Where ex-spouses hold undivided half shares and cannot agree, either can approach a court under the actio communi dividundo to end the co-ownership, and the court commonly orders a sale with the proceeds divided in proportion to the shares. A court can also appoint a receiver or liquidator to divide a joint estate where the parties are deadlocked. Both are slower and more expensive than agreeing a sale between yourselves.

## Sources

- [Matrimonial Property Act 88 of 1984 (Department of Justice)](https://www.justice.gov.za/legislation/acts/1984-088.pdf)
- [Divorce Act 70 of 1979 (Department of Justice)](https://www.justice.gov.za/legislation/acts/1979-070.pdf)
- [Transfer Duty Act 40 of 1949 (gov.za)](https://www.gov.za/documents/transfer-duty-act-28-may-2015-1032)
- [SARS Interpretation Note 134: Transfer of assets between spouses (section 9HB)](https://www.sars.gov.za/wp-content/uploads/Legal/Notes/Legal-IntR-IN-134-Disposal-of-assets-by-deceased-person-deceased-estate-and-transfer-of-assets-between-spouses.pdf)
- [Fischer v Ubomi Ushishi Trading and Others [2018] ZASCA 154 (SAFLII)](https://www.saflii.org/za/cases/ZASCA/2018/154.html)
- [EB (born S) v ER (born B); KG v Minister of Home Affairs [2023] ZACC 32 (SAFLII)](https://www.saflii.org/za/cases/ZACC/2023/32.html)

## Related guides

- [Selling a house with a bond in South Africa](https://privately.co.za/guides/selling-a-house-with-a-bond-south-africa)
- [Capital gains tax when you sell property in South Africa](https://privately.co.za/guides/capital-gains-tax-property-south-africa)
- [Conveyancing and the property transfer process](https://privately.co.za/guides/conveyancing-and-the-transfer-process)
- [What it really costs to sell a house in South Africa](https://privately.co.za/guides/cost-of-selling-a-house-in-south-africa)

---

Figures verified 2026-08-12. General information about South African property practice, not legal or financial advice.

Source: Privately, https://privately.co.za/guides/selling-a-house-during-divorce-south-africa