My partner and I are separating, the house is in both our names. What can I do?

I INTRODUCTION

Growing up people envision the perfect life, and for many, that includes a perfect marriage, partnership or?union. A joint journey with a partner whom you share everything with, including most people's largest asset, their home.

But as we arrive in the year 2023, divorce rate statistics are on a steady rise, slowly increasing year by year. These rates are increasing within the three major spheres of partnerships being;

·??????The classical ‘civil marriage’;

·??????the uniquely South African ‘customary marriage’;

·??????and the more recent ‘civil union’.

With over 130,000 divorce proceedings being finalized within 2022 alone. The question then arises, in regards to the marital estate and the separation of assets between two partners, at Bam Law we have recognized that the biggest question in regards to movable and immovable property disputes within divorce is “what can I do if both our names are on the title deed of the house”, and this discussion will present three remedies that you have available to you as of right now.

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II THE MARTIAL ESTATE – A BREAKDOWN

It must be established that within the aforementioned three types of life partnerships, the default position is that of ‘community in property’, this simply means that when two individuals form their union, they share everything, from money, property and even debt. Unless stated otherwise, through an accrual agreement or a flat-out, non-community of property position, then ‘in the community of property’ is most likely the matrimonial property system under which the majority of people fall.

When divorce proceedings are instituted by either party, the dividing of this joint ‘in the community of property’ estate must be undertaken, and this leads us to our abovementioned question, “what happens to the house?” What happens if both partners names are on the title deed? What legal remedies can they implement right now before they are drowned in legal documentation and legal fees?

III THE REMEDIES TO A JOINT TITLE DEED DURING DIVORCE PROCEEDINGS.

Law states that no individual shall be kept in an co-ownership agreement against their will, so you can never be forced to remain in co–ownership agreement.?

In regards to remedies, there are three solutions to implement within divorce or separation when it comes to joint ownership of property between partners, being the following;

(a) One partner can buy or sell their share, from/to the other partner.

This is as simple as it sounds, during the separation, and to avoid ongoing costly litigation and legal processes, sometimes the best solution is the easiest, the ability to sell your half of the property to the partner, or vice versa is almost always the simplest and least emotional way to handle co-ownership termination. This leaves both parties happy, in most cases, one with money, the other with full ownership of the property.

(b) Both parties can sell the house and split the money in half.

We understand that life can have hurdles, both emotional and financial hurdles, the former remedy may sometimes not be an option for some, because staying on the property may not be the best for them emotionally in trying to find their path to healing after separation, and in other cases, both partners may not have the money to buy the other out. The best approach if either is the case, is putting the property up for sale and splitting the proceeds evenly between the partners. As a result, both partners are holders of half of the monetary value of the home.

(c) If possible, a division of the property.

Lastly, is that of the division of the property, this only applies if it is possible to divide the property in the first place, for instance, a large farm, a plot of land, or a two-story apartment house. This remedy is based on the two parties being able to come to an agreement in which they can equally split the property in half, in whichever way or form is reasonable, with the aforementioned examples being presented.

IV WHAT CAN YOU DO BEFORE MARRIAGE TO PROTECT YOURSELF?

Before marriage, it is important to get a prenuptial agreement to protect yourself and your property from any potential issues that may arise during the marriage. This document should outline each partner's rights and obligations in terms of property, as well as any other areas of importance. Additionally, it is important to keep separate accounts and not to commingle money. Create a household budget and financial plan that is agreed upon by both parties. Lastly, be sure to keep records of any property purchased before marriage, as this can help ensure that it is considered separate property.

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ABOUT BAM LAW

If you have any questions related to property law & sectional titles , the team at BAM LAW are qualified to assist. Email – [email protected] [email protected] & or