A reader wants to know how she can go about retaining the marital property she bought with her now ex-husband, while paying him out his share.
After they were divorced some years back, and as incongruous as it may seem, they continued to own the dwelling jointly while also living in it.
She adds that the division of the property did not take place and that she paid the bond instalments, rates, municipal accounts and maintenance expenses.
The reader says they now want go their separate ways, but the husband believes he is entitled to 50% of the proceeds of the sale.
See the reader’s question here.
Rather than selling the property, the reader would like to retain it and pay him out what he may be entitled to.
As the division did not take place it would seem that there was some arrangement as to how the property would be dealt with.
With the parties being divorced, it would be logical that the property was dealt with as part of the divorce proceedings.
Often spouses getting divorced will enter into a settlement agreement regulating certain consequences of their intended divorce.
The reader should start by refreshing her memory as to the provisions of the agreement applicable to the property.
Such a clause often specifies that the fixed property should be sold.
It can even record such aspects as the minimum purchase price and that, should either party refuse to sign any necessary documentation to effect transfer, a third party can be authorised to sign on that party’s behalf.
The settlement agreement should also address which party will be liable to pay which costs and expenses.
If the parties failed or chose not to address the sale of the fixed property, it is possible that they elected to continue to be co-owners.
If so, they should have made provision for such an arrangement – particularly as co-ownership comes with potential problems.
These include the division and payment of expenses, uninterrupted payment of bond instalments and when or how the property will be sold.
One party buying out the share of the other could also be addressed in a settlement agreement and this will often be subject to the purchaser satisfying any requirements in respect of a bond.
The purchase price of the share should be agreed to and, to avoid such an arrangement dragging on, a time limit could be recorded within which the transaction should be finalised.
Failure to comply within the agreed time period could then trigger the marketing and sale of the property.
Whether or not the ex-husband is entitled to a portion of the proceeds would depend on the provisions of the settlement agreement.
If the agreement is silent on this point, it is possible that the parties concluded another arrangement outside of their divorce.
Of course, the provisions of an agreement of such a nature may be difficult to prove if only concluded orally.
Failing an agreement to the contrary, the reader could argue that the expenses paid in excess of her liability as a 50% co-owner should be offset against the proceeds.
This means she may be able to recover the expenses she has paid over the years, with the balance of the proceeds then being divided between the two parties.
It would appear that the property is still bonded and the balance of the bond owed would be deducted before any other aspects are considered.
Depending on the provisions of whatever agreement may be applicable, if any, the reader’s failure to insist on the ex-husband paying his contributions could also be regarded as a waiver of her right to do so.
Any such agreement should be considered to determine whether this may be the case or whether a clause provides for any arrangement for it not to be regarded as a waiver.
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