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Move out of house prior to divorce?

"Can I move out of the house prior to the divorce" is one of most common questions which an attorney is asked during a divorce consultation.

It is very much a personal decision whether to do this or not. There is however an age old saying that “possession is nine tenths of the law”. Should you move out of the house, you cannot simply move back into the house a few months down the line. Moving out of the house may however lead to problems at a later stage, specifically when the property is sold, as the party who is in occupation of the house may not allow estate agents in to value the property. Thousands of rands may at a later stage need to be spend on bringing a further application to court after the divorce, or even prior to the divorce, to allow estate agents access to the premises.

A Consent Paper should be properly drafted and deal with a clause relating to a time period within which a property should be sold after the divorce. It should also have a clause stating that if one party does not sign transfer documents, the Sheriff may sign on behalf of that person. It should also state that the property may be sold by auction if it is not sold within a certain time after the divorce.

At present the property market is quite slow, and there is a tendency for the parties not to stipulate a time period within which the property should be sold.

A common clause in a Consent paper is also that the property should be sold once the children turn 18, but that if the party who occupies the property remarries, then the property will be sold immediately. Generally the person who occupies the property must pay the rates accounts. The property can also be sold before the divorce goes through.

I would advise a client to move out of the house prior to the divorce if there is a significant level of domestic abuse and the client feels as though his/her life is in danger, or the lives of the children are in danger. The abuse can be physical, verbally, emotional, financial or sexual. Should you move out of the house you will definitely lose you right to move back in should you wish to, but you will not lose your rights to the equity in the property, depending on who carries on to pay the bond after you move out. A point may be taken in a divorce case that if a party moves out of the house and does not pay bond payments, that party will lose his/her right to share in the appreciation of the property as of date of moving out.

Other property related divorce articles

Being realistic in splitting up the property.

Can I evict my spouse?

Divorce & parental loans

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


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