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What Happens If your Wife Moves Out Before Divorce in South Africa?
In South Africa, wives can move out before divorce without losing their rights to property or custody, but careful planning is needed and a cooperative approach is first prize. Moving out does not affect the divorce process, but it may complicate property sales or custody claims. Consult a lawyer to protect your interests.
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”.
Losing right to move back in
Should you move out of the house, you cannot simply move back into the house a few months down the line.
Allowing access to estate agents to sell the house
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 spent on bringing a further application to court after the divorce, or even prior to the divorce, to allow estate agents access to the premises.
Consent paper's property clause
A Consent Paper should be properly drafted and include:- A clause relating to a time period within which a property should be sold after the divorce. For example, “The property shall be listed for sale within 30 days of the divorce decree and sold within 180 days of listing".
- Ensure there is a clear agreement on access for estate agents. For example: “Both parties shall allow estate agents reasonable access to the property during the selling period. If access is denied, the party obstructing the sale may be compelled to provide access through a court order.”
- It should have a clause stating that if one party does not sign documents for the transfer of the property, 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. For instance, “Should the property remain unsold 180 days after listing, it may be sold by auction if both parties do not agree on an extension.”
- Specify who will handle property maintenance and repairs. For example, “The party residing in the property shall be responsible for ongoing maintenance and repairs until the property is sold.”
- Address who will maintain property insurance. For example, “The residing party shall maintain homeowner’s insurance and provide proof of coverage to the departing party.”
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.
Selling property when children turn 18
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.
Domestic abuse
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, verbal, emotional, financial or sexual.
Paying the bond
Should you move out of the house you will definitely lose your 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 the date of moving out.
Why Moving Out Might Be Risky
Moving out before a divorce in South Africa can be risky due to potential loss of access to the marital home and disputes over property sales. If you leave, you may lose control over the property, and the remaining spouse could attempt to sell or encumber it without your consent, depending on the marital regime. This could complicate your claim to the property or lead to legal disputes. Consulting a lawyer to secure your rights before moving out is essential.
Moving Out Before Divorce is Final
Before moving out, ensure interim maintenance and custody arrangements are in place. In South Africa, you can apply for a Rule 43 order (in the High Court) or similar interim relief to secure temporary maintenance for yourself and your children, as well as custody or visitation terms. These arrangements provide financial and custodial stability until the divorce is finalized. A lawyer can help you draft and file these applications to protect your interests.
This article was written by Cape Town divorce law specialist, Peter M Baker
FAQ: Moving Out Before Divorce in South Africa
1. Can a spouse move out before divorce in South Africa?
Yes, a spouse can move out before a divorce in South Africa. There is no legal requirement to remain in the marital home until the divorce is finalised. However, moving out may have implications for property division, child custody, and spousal maintenance, so it’s advisable to consult a lawyer beforehand to understand your rights and obligations.
2. Does moving out affect property division?
Moving out of the marital home does not automatically affect property division. Property division in South Africa depends on the marital regime (e.g., in community of property or with an antenuptial contract). However, leaving the home could influence negotiations or perceptions of your interest in the property. For example, if you move out and stop contributing to the mortgage or maintenance, it might impact your claim to the marital home. Seek legal advice to protect your rights.
3. How does moving out impact child custody?
Moving out can influence child custody arrangements, as it may affect the court’s perception of your role in your children’s lives. Courts in South Africa prioritise the best interests of the child when deciding custody. If moving out disrupts the children’s stability or limits your involvement, it could impact your case. To strengthen your position, maintain regular contact with your children, document your involvement, and propose a clear co-parenting plan. Consulting a lawyer is crucial to navigate custody disputes effectively.
Info on Divorce & fixed Property
Alongside any pension fund investments; the house or flat being lived in is often the biggest asset in a divorce.
- Should I move out of house prior to divorce?
- How to transfer property from husband to wife (or vice versa); whilst still married (ie not getting divorced).
- "Protection" of fixed property using a trust.
- In-laws:
- When you're living with the in-laws, have developed their property & signed surety for their bond.
- When the in-laws sell property to child at reduced rate - impact on divorce (premature inheritance).
- Property clause in divorce settlement.
- Living together after the divorce.
- How to evict your spouse from the matrimonial home.
- Conveyancers conduct the transfer of property ownership from one spouse to another (or to a third party, if relevant).
- Liquidator to sell property & divide proceeds as part of divorce.