A reader in the throes of a divorce is due to become the sole owner of the fixed property she and her husband jointly own and she wants to know how this will be executed.
The property is their current residence and she says that, in accordance with their intended settlement agreement, she will receive the property.
The agreement referred to could be used to record all relevant provisions relating to the fixed property.
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The parties should properly identify the fixed property and record that, subsequent to their intended divorce being finalised, it is their intention that the reader is to acquire the share in the property held by her husband.
The Deeds Registries Act states that the registrar may, on written application by both spouses, accompanied by the necessary documents, endorse on the title deed of the property.
The endorsement confirms that the spouses are entitled to deal with such property and that she has taken formal transfer of her spouse’s share.
The transfer of the share held by the former spouse is accordingly effected by way of an endorsement rather than the more formal and typical transfer procedure.
If the fixed property is subject to a bond, certain rules will apply.
The provisions of these sections in the act typically apply where fixed property is transferred by way of an endorsement in a deceased estate where the surviving spouse acquires the share of the deceased spouse.
For the endorsement to be made by the registrar, these provisions specify that the bond is transferred, the property is released from the bond or written consent is provided substituting the transferee as the sole debtor in respect of the bond.
The reader should consider the possibility of the requirements of the bond not being fulfilled and could, for example, record that the property is to be sold in that event.
Another aspect to consider is that of a form of occupational rental.
This is potentially relevant if one spouse remains in occupation between the date of divorce and that of either endorsement or, for example, a sale of the fixed property if an endorsement is not possible.
The amount paid could be attributed to the maintenance and upkeep of the property for the interim period, which is particularly important if it is sold to a third party.
It would be prudent for the couple to seek professional advice in the preparation and drafting of their settlement agreement so as to ensure their intentions are properly recorded.
You do not want any issues to arise post-divorce potentially requiring the amendment of the court order.
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