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Property clause in divorce settlement

One must think carefully about how to formulate the fixed property clause in a divorce settlement agreement in today’s times, as the property market is very slow at the moment. Nobody can predict at the moment if and when the property market will improve, and you do not want your home to be sold very cheaply just so that you can bring closure to your marriage relationship.

Common clauses in a divorce settlement agreement would read as follows:

    1. IMMOVABLE PROPERTY

      1. Immediately upon the signing of these present, the Property situated at 3 Pumpkin Patch Drive, Pumpkin Town shall be put up for sale by private treaty;

      1. All the material terms relating to the sale, particularly the selling price, shall be as agreed upon by the parties;

      2. The nett proceeds of the sale of the Property shall be divided equally between the parties;

      1. The “nett proceeds” of the sale of the Property shall be the selling price thereof, less:-

    1. Estate Agents’ commission;

    1. the costs of obtaining Entomologists’ or similar certificate;

    1. any other costs properly incidental to the sale of the Property and the transfer thereof into the name of the purchaser.

      1. By the signatures hereto, the parties irrevocably authorize the firm Joe Soap Attorneys, CAPE TOWN, to attend to the finances and conveyancing relating to the sale of the Property.

      1. Pending the Sale of the Property:-

        • The Plaintiff and Defendant shall have the right to reside in the property until such property is sold;

        • the Defendant shall be liable for, and shall effect payment of, all expenses incidental to the Property, to include, but not be restricted to, the insurance premiums, costs of maintenance and the like, and other outgoings;

        • Defendant shall be liable for the arrears on the rates up until 10 October 2008, and after 10 October 2008 each party shall be liable for 50% of the rates accounts.

        • the Plaintiff and Defendant shall ensure that the Property is kept in good order and condition;

      1. Plaintiff and Defendant undertake to sign all documents required to effect transfer of the immovable property, as well as any estate agent mandates authorising them to market the property, any offer to purchase or any other related documentation.

      1. Applicant and Respondent hereby authorize the Sheriff of the above Honourable Court to take all steps contemplated in the clauses above, in and on the Plaintiff and/or Defendant’s stead and behalf in the event of the Plaintiff and/or Defendant failing to do so within fourteen (14) days of demand.

      1. In the event of the said immovable property not being sold within six (6) months after date of divorce the property shall be sold by auction. Joe Soap Attorneys shall attend to the conveyancing and financial aspects relating to the auction.

      1. Should either party refuse to sign any mandate to auctioneers or any other related documentation, the Sheriff may sign on behalf of that party. Clause 3.1.8 above shall also apply to clause 3.1.9 above.

      1. Should Plaintiff or Defendant refuse in allowing an estate agent, potential purchaser, auctioneer, or any other interested party entry to the premises, the Sheriff of the Court may assist and accompany that party onto the premises.

The abovementioned example is probably the most thorough way of drafting the fixed property clause, as it covers all eventualities. It is difficult to say in the current poor state of our economy whether to insert a time period within which the property should be sold. The abovementioned example allows for a six month time period, failing which the property would be sold by auction. Just to be on the safe side it may be wise to allow a period of twelve months before the property is sold. The option is also open to you not to mention any time period in which the property should be sold. This could however lead to problems in the future, as there is no clarity on the time period.

Many of my clients are hesitant to include a clause stating that if the property is not sold in a certain time it will be sold by auction. The inclusion of this clause would of course depend on how much is still owing on the client’s bond, as you do not want the property to be sold at a loss at an auction.

In my experience very often clients phone me after a divorce requesting advice on how to have the property sold and how to enforce the divorce order. I personally would advise a client to have a time period clause for the sale of the property included in the settlement agreement, even in the current poor state of our economy, as it will save you from having to spend further money at a later stage on going back to court, and it will also force closure on the whole divorce.

This article was written by Cape Town divorce law specialist, Peter M Baker

Other property divorce related articles

Should I move out of the house prior to the divorce?

The realistic approach to divorce.

Can I evict my spouse from the matrimonial home?

Divorce & parental debt


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