How to find a divorce lawyer in Cape Town, South Africa

Parental loans & divorce

"We are getting divorced and my parents paid a deposit when we bought the house and are also staying on the property. They want their money back. How do we deal with this in our divorce?"

The abovementioned question is a question which has come up in a few divorce cases which I have handled. I have found that very often when a couple gets married their parents assist financially when they purchase their first house by helping them to pay a deposit. Some people even obtain financial assistance by making a loan from a personal friend. A loan from a family member is very often interest free as opposed to the high interest rates which the banks offer.

Nobody in this situation foresees the divorce, but when a divorce becomes imminent, the party who lent the money would want their money back.

In the divorce papers you would have to prove that there was some kind of agreement that the parents would advance the money. You would have to state the date and place of the agreement. Such an agreement is normally a verbal agreement. I would however always urge parties in this kind of situation to enter into a written agreement rather, as this is far easier to prove in a court of law.

In the court papers you would also state that part of the agreement for example was that one of the parties’ parents would be entitled to live in the property as long as the parties remain the registered owners thereof. You may also in the court papers for the divorce state that the parties agree that the property should be sold and the proceeds divided equally after payment of the amount owing to the parents.

Very often the courts however do not entertain such a claim by the parents in the actual divorce action. In a recent court case which I was involved in my client disputed the existence of an agreement to pay back her husband’s parents for money which they had allegedly lent to buy the house. The court was of the opinion that the parents are not involved in the actual divorce, and that they would have an enrichment action in the high court to claim back the money which they paid into the property.

It very often gets alleged in a divorce matter that money is due to the parents of one of the parties. However our law would follow the rule of “he who alleges must prove”, and if you are not able to prove the existence of any such agreement, then the court will definitely not in any forum, whether it is the divorce court or any other court, entertain such claim.

Such situations where the parents of one of the spouses continue to reside on the same property as the married couple after paying a deposit is becoming more and more common nowadays. It is meant to be a win-win situation where the married couple undertake to look after the parents in their old age in exchange for a financial contribution towards the purchase of the property. It very often however does not end up like this when the marriage is destined to head to the divorce courts.

To safeguard oneself, the parents should rather insist on an acknowledgement of debt when loaning money to a married couple, so that it is in writing, or insist that they have a right of usufruct registered at the deeds office, which gives them a right to occupy the property, or a portion thereof, until their death.

Other property related divorce articles

Being realistic in splitting up the property.

Can I evict my spouse?

Divorce & property


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