Selling the family home in a divorce: who decides, and how

Start with how you were married

Everything else follows from your matrimonial property regime: check your marriage certificate and any antenuptial contract.

For a Muslim marriage, a divorce court may since 14 May 2024 order a share of assets transferred where the spouses have not agreed (section 7(3A), Divorce Act). Polygamous customary marriages have their own rules. These laws have changed several times recently, so have an attorney confirm your regime first.

Married in community: no sale without both of you

Section 15(2) of the Matrimonial Property Act says a spouse may not, without the other’s written consent, alienate or mortgage immovable property in the joint estate, or enter into any contract to do so. So the consent must cover the sale agreement itself, at an auction the conditions of sale, not just the transfer.

• One consent per sale, witnessed. It must be given separately for each act and attested by two competent witnesses (section 15(5)).
• Sign before the auction. Consent to the transfer itself, or consent needed to register a deed, cannot be given by ratifying afterwards (section 15(4)), so do not rely on ratifying later.
• Contents count too. Household furniture needs consent, and jewellery, coins, paintings and similar assets held mainly as investments need it in writing (sections 15(3)(a) and 15(2)(d)).

A sale without consent is void, unless the purchaser did not know and could not reasonably have known that consent was lacking; then consent is deemed, and the other spouse may get an adjustment when the joint estate is divided (Vukeya v Ntshane, Supreme Court of Appeal, 2020; section 15(9)). Both of you consent and sign our mandate: married in community, one spouse cannot mandate the sale alone, and we check ownership against the deeds record before anything is marketed (see property auctions).

If your spouse refuses

On application, a court can authorise the sale without consent if the refusal is unreasonable (section 16(1)), suspend a spouse’s powers to protect the other (section 16(2)), or order an immediate division of the joint estate where one spouse’s conduct, or proposed conduct, is or will probably be seriously prejudicial to the other, provided no one else is prejudiced (section 20).

Married out of community: the owner sells, but the accrual counts

Out of community, each spouse can generally sell what is registered in their own name without the other’s consent. A house in both names needs both co-owners.

With the accrual system, the claim to share in the other spouse’s growth arises only when the marriage is dissolved (section 3(2), Matrimonial Property Act), and a sale turns the house into cash in the owner’s estate without taking it out of the calculation. Inheritances, legacies and donations are generally left out, unless your antenuptial contract or the testator or donor says otherwise (section 5), and each spouse must disclose their estate when asked (section 7).

A court may order an immediate division of the accrual if one spouse’s conduct, or proposed conduct, is or will probably be seriously prejudicial to the other’s claim, provided no one else is prejudiced (section 8(1)), and on divorce the right to share can be declared forfeit (section 9). If you fear a sale is meant to put money out of reach, tell your attorney before the auction.

Co-owners cannot be forced to stay co-owners: any of them may ask the court to end it (the actio communi dividundo), and the court decides how, which can include appointing someone to sell and split the net proceeds (a general rule, restated in N.A.N v S.S.N, Gauteng High Court, 2021, a case about former spouses married in community).

The divorce order: what it settles and what it does not

A court granting a divorce may make an order dividing the assets in accordance with a written agreement between the parties (section 7(1), Divorce Act). That is the settlement agreement made an order of court. In community of property, each spouse acquires a right to claim half the value of the joint estate, unless the court orders forfeiture of patrimonial benefits (Badenhorst NO v NGC, Free State High Court, 2025; section 9, Divorce Act).

The order does not move ownership. On divorce the spouses become free co-owners until the estate is divided, and a spouse awarded the house has only a personal right to have it registered in their name; ownership passes on registration, or on an endorsement of the title deed under section 45bis of the Deeds Registries Act (Fischer v Ubomi Ushishi Trading, Supreme Court of Appeal, 2018).

If the house is to be sold, the agreement should say

• who signs, and that both of you will sign documents on request;
• auction or private treaty, who chooses the auctioneer, and how the reserve is set;
• who lives there and pays the bond, rates, levies and insurance until transfer;
• how the net proceeds and the costs are split, including the appraisal and listing fees if it does not sell;
• who decides on a post-auction offer or a bid held for confirmation;
• a deadline, and what happens if it passes.

The last matters: in N.A.N v S.S.N the judge said a time frame in the settlement agreement would have made the court application unnecessary.

When a court appoints a receiver and liquidator

Where former spouses cannot agree on dividing a joint estate, the court may appoint someone, called a liquidator, receiver or curator, “to collect, realise, and divide the estate” (Gillingham v Gillingham, 1904, applied in Badenhorst NO v NGC). The appointment can be made in the divorce order or later, on application (N.A.N v S.S.N).

The receiver’s powers come from the court order and any agreement signed with them. In Badenhorst they included selling assets “by public auction or by private agreement as may seem most beneficial with the leave of both parties”, paying the debts, and paying the balance to the former spouses in equal shares after the receiver’s fees.

There, the former wife wanted everything auctioned and refused to transfer her half share to her former husband, who had offered for it; the receiver said selling everything would add avoidable costs. The court held that she could not dictate to the receiver to whom her half share was sold, and ordered her to sign. A frustrated receiver can also ask the court for directions. What a receiver may do depends on your order and agreement, so have your attorney check them. The fees come out of what you would otherwise share, so an agreed route is worth trying first.

We act on divided joint estates (see estate auctions). Before we market anything, the mandate must confirm the seller’s entitlement to sell, so for a receiver the court order and the powers it gives come first.

Why an auction suits two people who disagree

Where a joint estate must be divided and the parties cannot agree a value, an open auction produces a number neither side set.

• A floor you both sign. The reserve is agreed in advance, by both of you or by the receiver. If bidding stops below it, the property does not sell on the day, though a post-auction offer or a bid held for your confirmation may follow: agree now who decides, and by when (see the reserve price explained).
• A fixed date. With us, property typically runs three to four weeks from a mandate you both sign to auction day, then transfer typically takes two to three months, depending on the deeds office and any bond cancellation. Set deadlines for the mandate, the auction and a no-sale, not just a sale.
• A public price and a record. Registered bidders compete for an advertised property, and a written report afterwards covers what was achieved, the marketing and the bidder registration record.

For the reserve, you may want a figure from a registered valuer neither of you appointed alone; your attorney will know whether a court needs one. We give you a price guide before you commit to anything (see selling on auction). Our charges to the seller are an appraisal fee, a listing fee and commission on the sale price, set out in writing in the conditions of sale before you sign; agree in writing how they are shared between you.

A conventional home may do as well by private treaty through Dynamic Real Estate: see auction or estate agent and property auctions.

If one of you keeps the house

Often one spouse takes over the house against the other’s share. Settle four things:

• The bond. Your settlement agreement binds the two of you who signed it (Fischer, para 18), and the bank is not a party to it. Ask the bank in writing, early, whether it will release the spouse who leaves and whether the one keeping the house qualifies alone.
• Registration. For a joint estate house, the Deeds Office can endorse the title deed instead of a full transfer (Deeds Registries Act section 45bis(1)(a), quoted in Fischer).
• Transfer duty. A divorced spouse who acquires sole ownership of property registered in the other’s name, as a result of the dissolution of the marriage, is exempt under section 9(1)(i) of the Transfer Duty Act, whatever the marriage regime (SARS Transfer Duty Guide, 8.2.7; see transfer duty).
• Capital gains tax. An asset transferred to a spouse in consequence of a divorce order rolls over: the transferor disregards the gain, and the receiving spouse takes over the original cost and date, so the gain is taxed when that spouse later sells (section 9HB of the Income Tax Act, SARS Interpretation Note 134).

The bond, the clearances and the money

Until transfer, the bond, rates, levies and insurance stay due. If bond payments stop, the bank must first give the written notice the National Credit Act requires before it sues (section 129(1)(b)), and it can then ask a court to have the property sold in execution, on its timetable rather than yours. On registration of transfer, the conveyancer pays the bank and the bond is cancelled. Where the bond is a variable-rate home loan in your own names, the Act caps the early termination charge at the interest for three months, less any notice of settlement you gave (section 125(2)(c)(ii), in force since 1 June 2007). So give notice as soon as a sale is likely, get the cancellation figure before you agree the reserve, and speak to the bank first if the price may not cover the bond.

Transfer also needs a municipal certificate that rates and charges for the previous two years are paid (section 118(1), Municipal Systems Act, 2000) and, for a sectional title unit, the body corporate’s confirmation that levies are paid or provided for (section 15B(3), Sectional Titles Act). Any arrears must be settled first.

The rest is paid out as your settlement agreement or court order directs. Agree in writing, before the auction, where it goes: in stated shares to each of you, or into an attorney’s trust account until the division is settled.

Capital gains tax when you sell to someone else

• In community. SARS treats a primary residence in the joint estate as disposed of in equal shares by each spouse, and the primary residence exclusion is shared between them (SARS, primary residence, paragraphs 14 and 45(2) of the Eighth Schedule).
• Out of community. The spouse who owns the asset accounts for the gain; the accrual system does not split capital gains between spouses (Interpretation Note 134). Co-owners each account for their own share of the gain, and the exclusion is apportioned between them (SARS, primary residence; paragraph 45(2)).
• The exclusion. A draft Bill published with the February 2026 Budget would raise the primary residence exclusion from R2 million to R3 million of gain from 1 March 2026, and SARS’s capital gains tax page already shows R3 million, but Parliament was still holding hearings on the Bill on 30 September 2026, so check which figure applies when you sell.
• Living there. The exclusion needs the owner, or the owner’s spouse, to ordinarily live in the home. If one of you moved out long before the sale, ask a tax practitioner how that affects your share.

Practical steps, in order

1. Take advice first. See a family-law attorney, and confirm your regime and the title deed, before either of you signs a mandate, an offer or a settlement agreement.
2. Get the numbers. The bond settlement figure and notice terms, the rates and levy accounts, and a valuation.
3. Decide: sell or buy out. Put the route, reserve, costs, occupation, split and deadline in writing, and sign the consents and mandate together.
4. Settle who lives there. Agree a date for vacant occupation: no one may be evicted from their home without a court order (section 26(3) of the Constitution), and a purchaser cannot simply change the locks.
5. Contents and vehicles. Agree who keeps what and sell the rest through our movable assets or vehicle auctions.

For the auction process itself, see selling property on auction. To talk through a divorce sale, contact us or phone 086 155 2288.