Transferring a house after a divorce

The legalities of transferring a property after a divorce depend on the terms of the divorce settlement and the nature of the property ownership. Once a court has granted a decree of divorce, properties must be transferred as stipulated in the agreement.

If a property was jointly owned by the spouses, the parties may agree to sell the property and divide the proceeds. Or one party may agree to transfer their share of the property to the other party.

The transfer itself may take a few months, but the interests of the party who acquired the property in terms of the divorce settlement are protected. That means, the other party cannot use the property as security for debts or encumber it with a mortgage.

If one spouse owned the property prior to the marriage, the transfer of ownership may be more complex. In general, if the property was acquired before the marriage and was not used for the common benefit of both spouses during the marriage, it may be excluded from the joint estate and remain the property of the original owner.

But if the property was acquired during the marriage, for example, with funds from the joint estate, it may be considered part of the joint estate and subject to division in the divorce settlement.

Once the terms of the divorce settlement have been agreed upon, the transfer of ownership can take place through a conveyancing process. This typically involves the registration of the transfer of ownership with the Deeds Office, which requires the submission of various documents and the payment of fees and taxes.

It’s important to note that the transfer of ownership must comply with all relevant legal requirements and procedures, including those related to transfer duties, capital gains tax, and municipal bylaws.

The parties should seek legal advice to protect their rights and interests, and to ensure that the transfer is conducted in accordance with the law.

Cancelling a property sale agreement

When a buyer signs an offer to purchase a property and the seller countersigns the offer, it becomes a binding agreement of sale.

What if one of the parties changes their mind? The buyer no longer wants to buy, or the seller no longer wants to sell. Is it possible to cancel the agreement of sale?

It all depends on the terms of the agreement and may have substantial financial implications. Basically, it’s important to study the agreement.

For example, a sales agreement automatically becomes void if the buyer is not able to raise finance. This usually happens early on, and the agreement automatically lapses. Once finance has been approved and a bank has issued the guarantee, there may be other suspensive conditions that, if not fulfilled, will cancel the agreement.

If one of the parties is in breach, for example, by not fulfilling a suspensive condition either in the time allocated or not being able to do so at all, this could be grounds to cancel the agreement. But it also depends on whether the agreement stipulates any remedies for such a situation.

On the other hand, new facts about the property may have come to the attention of the buyer that he feels the seller should have disclosed, which could put a spanner in the works. The seller may have knowingly concealed substantial defects, thinking he could rely on the voetstoots clause. But that isn’t always the case.

Of course, cancelling an agreement by mutual consent is always possible, depending on the situation. If the transfer process is already underway, it’s likely that the party who initiates the cancellation may be liable for legal and other fees.

Any one of these scenarios is possible, depending on the terms of the agreement:

Cooling-off period

There could be an agreed-upon cooling-off period stipulated in the agreement within which the buyer or seller could withdraw from the contract.


If either party breaches a specific clause of the agreement, the other party may be entitled to cancel the agreement.

Suspensive conditions

The agreement may have conditions that must be fulfilled by a certain date. If these conditions are not met, the buyer or seller may be entitled to cancel the agreement.


Rescission of the sales agreement may be possible if there was fraud or misrepresentation by one of the parties, or if there was a mistake in the agreement.

Mutual agreement

The parties may agree to cancel the agreement by mutual consent. In this case, the terms of cancellation should be clearly agreed upon in writing and signed by both parties.

A party who wishes to cancel a sales agreement should consult a qualified legal professional who can explain their rights or obligations and advise on the best way forward.

Electronic signatures for property transactions

What if a seller lives in a house in Cape Town that he wishes to sell. A potential buyer in France, looking for an investment property, sees the house advertised online. How do they go about signing the agreement of sale and all the transfer documents? Let’s explore whether electronic signatures can be used for property transactions in South Africa.

Electronic signatures are becoming increasingly common because they’re convenient and speed up the process of getting documents signed. Applications such as DocuSign enable secure e-signature transactions with multiple levels of authentication. But contrary to other sales transactions, the sale of immovable property still requires a written document signed by all parties personally to be valid and binding in terms of the Alienation of Land Act.

Another piece of legislation, the Electronic Communications and Transactions Act, deals with electronic signatures of documents and specifically excludes agreements of sale of immovable property. Therefore, the sales agreement must still be signed “in wet ink” by the buyer and seller or their agents. The buyer or his agent can sign the sales agreement in France, but the physical paper contract will have to be couriered back and forth.

Now to the next step, the transfer documents. The transfer of property is governed by the Deeds Registries Act, which requires that any transfer of land must be in writing and signed by all parties. Traditionally this has been interpreted as requiring a physical signature. But in recent years there has been a move to recognise electronic signatures as valid alternatives to wet ink signatures.

The Deeds Office still requires documents to be printed, signed, and physically submitted for registration. But once the Electronic Deeds Registration Systems Act is fully in effect, this process will be much easier. Presently, only one section is in force. The one that authorises the Chief Registrar of Deeds to develop, establish and maintain an electronic deeds registration system. Eventually, this system will replace the current manual preparation and lodgement process. And then the entire process will speed up dramatically.

What if the seller of a property dies before transfer?

When you buy a house quite a few things must happen at the appointed time for the transaction to run smoothly.

As a buyer, you would have either given notice at a rental property or sold the home where you live now. The evacuation date at your current home is likely to coincide with your occupation date of the new property. You would have cancelled services and booked the movers. If everything is going according to plan, the transaction should take about three months from signing of the sales agreement to transfer.

But what if the owner and seller of the new property dies before signing the transfer documents?

This is the legal position

The sales agreement remains in force when a seller dies. But the process comes to a halt until an executor for the deceased estate has been appointed by the Master of the High Court.

Once appointed, the executor must make sure that the estate is solvent and that the sale agreement is valid and binding. The executor must sign a new Power of Attorney, endorsed by the Master of the High Court, for the transferring attorneys so they can continue with the conveyancing process.

If the matter has already been lodged at the Deeds Office, the attorneys will need to resubmit the documents with the new Power of Attorney.

Do the heirs have a say?

The heirs only need to consent to the sale of a property if there is no valid sales agreement in place.

If there is a valid sales agreement and the heirs object to the sale, then the buyer may have to enforce the sales agreement in court.

How long until the property is transferred

Although the sales agreement remains in force, the seller’s death will stop the proceedings. It usually takes about four to eight weeks after the estate has been reported to the Master’s Office before the Master issues his Letters of Executorship. Once the executor has been appointed and the transfer process is underway again, there should be no further delays.

What if the buyer dies?

If the buyer financed the property via a mortgage, the bank would likely withdraw its guarantee as the buyer would no longer be able to repay the loan. Then the sale would be cancelled. Only in a cash transaction would the buyer’s estate be obliged to pay the purchase price and proceed with the transfer.

Our conveyancing practice can assist you with any queries in connection with your property transfer.