What can I do as my ex-wife, with whom I was married in community of property, refuses to sign off on her share of the house?
The short answer
The divorce order, which is binding on both parties, does not in itself vest ownership in the other spouse, although it does create the right to enforce transfer.
The whole question
My ex-wife, with whom I was married in community of property, refuses to sign off on her share of the house for which there was a joint bond, although I paid half of the value of the house into her lawyer’s account, as per her instruction. What can I do?
The long answer
A 2021 article by benaters.com on transferring a property after divorce, notes that the divorce order, which is binding on both parties, does not in itself vest ownership in the other spouse, although it does create the right to enforce transfer. But for the house to legally be yours, there must be an endorsement of transfer in the Deeds Registry (in accordance with Section 45 is (1) (a) of the Deeds Registries Act 47 of 1937).
The article goes on to say that the spouse who received a full share of the property (which is you, as you have already paid your ex-wife’s 50% of the house’s value into her lawyer’s account) must make an application to the Registrar of Deeds to endorse the current title, showing that you are the sole owner of the house. This application must be made by a conveyancing attorney.
There is no prescribed time within which the title deed must be endorsed to reflect the change in ownership. But until the Registrar of Deeds has endorsed the title deed to show that you are the sole owner, the title deed will still show you and your ex-wife as being the owners, even though the marriage was dissolved by the divorce order in 2018.
By the way, Deeds Office fees will increase by about 6% from 1 April 2023 as published in the Government Gazette of 28 February 2023. These include increases for the registration of transfers and bonds according to the Schedule of Fees of Office.
Benaters goes on to say that an existing joint bond can be canceled and a new one registered in the name of the remaining sole owner, but that this can be costly, as there will be a fee charged for both the cancellation of the bond and the registration of a new one. A less costly strategy would be to substitute the one owner as the sole owner under the bond. Again, an application would have to be made to the Deeds Office in terms of Section 57 of the Deeds Registries Act 47 of 1937.
But it seems that your ex-wife would have to sign the application as well as you. A November 2018 article by dvh.law.za notes that in marriages under community of property, both spouses would be required to sign transfer documents or sale agreements, and of course, this is exactly where you are finding a problem, with your ex-wife refusing to sign.
But in that, you have a divorce order which awarded you both 50% of the joint estate, and you must have proof that you have paid 50% of the value of the house into your wife’s lawyer’s account, at her request, you should have sufficient legal grounds to compel her to sign.
Perhaps you should start by contacting your ex-wife’s lawyer and try to find out what the problem is. If the lawyer is not helpful, you could approach a lawyer yourself to enforce the transfer, which may involve going to court.
Wishing you the best,
Original article: https://www.groundup.org.za/qanda/731/