Can You Buy Property While Going Through A Divorce In South Africa?
Divorce often brings significant financial and personal changes, and many people are eager to move forward with the next chapter of their lives. For some, that may include purchasing a new home or investment property before the divorce has been finalised. But can you buy property while going through a divorce, and are there any legal risks you should be aware of?
Yes, you can buy property while going through a divorce, but whether it is advisable depends on your matrimonial property regime and the circumstances of your divorce. Understanding your legal and financial position before purchasing property can help you avoid costly complications.
While buying a property during divorce is not automatically prohibited, it can have important legal and financial consequences. Factors such as whether you are married in or out of community of property, the stage of your divorce proceedings, and any existing agreements between you and your spouse may all affect your rights and obligations. Below, we explain whether you can buy property while going through a divorce and the key considerations before making such a significant financial commitment.
Can You Buy Property While Going Through a Divorce?
Before committing to one of the biggest financial decisions of your life, it is important to understand how your divorce may affect the purchase and ownership of property.
The Short Answer Is Yes
In many cases, you can buy property while going through a divorce. However, purchasing property before your divorce is finalised does not mean the property will automatically be regarded as yours alone.
Whether the property forms part of the joint estate or remains your separate asset will depend largely on your matrimonial property regime and the specific facts of your case.
Your Matrimonial Property Regime Matters
Your matrimonial property regime plays a significant role in determining how property is owned during the marriage and how it will ultimately be dealt with during the divorce.
If you are married in community of property, assets acquired during the marriage generally form part of the joint estate. This means that purchasing a property while divorce proceedings are underway could have implications for the eventual division of assets.
If you are married out of community of property, with or without the accrual system, different legal principles may apply depending on your antenuptial contract.
How Does Your Matrimonial Property Regime Affect The Purchase?
Understanding your matrimonial property regime is essential before deciding to buy property during a divorce.
Married In Community Of Property
When spouses get married in community of property, they jointly own the assets and liabilities that form part of the joint estate.
If you purchase property while divorce proceedings are still pending, that property may become part of the joint estate and be taken into account when the estate is divided upon divorce.
Married Out Of Community Of Property
If you are married out of community of property, the position is often different.
Depending on whether your antenuptial contract excludes or includes the accrual system, property purchased during the divorce process may remain your separate asset. However, if the accrual system applies, the value of certain assets may still be relevant when determining each spouse’s accrual claim.
Because every situation is unique, obtaining legal advice before purchasing property is strongly recommended.
What Practical Factors Should You Consider?
Buying property during a divorce involves more than just legal ownership. There are also practical and financial considerations that should not be overlooked.
Obtaining Finance
Applying for a home loan while divorce proceedings are still underway can sometimes be more complicated.
Banks may consider your existing financial obligations, maintenance commitments, and the uncertainty surrounding the division of assets before approving finance.
Existing Divorce Proceedings
If you are still negotiating your divorce settlement, purchasing property prematurely may complicate those negotiations.
In some cases, acquiring a significant new asset may raise questions about affordability, asset disclosure, or the overall financial position of the parties.
Open communication with your attorney can help minimise unnecessary complications.
Could Buying Property Affect Your Divorce Settlement?
While purchasing property does not prevent a divorce from proceeding, it may influence certain aspects of the settlement.
Asset Disclosure Is Still Required
South African law requires spouses to make full and honest disclosure of their financial circumstances during divorce proceedings.
If you purchase property while going through a divorce, that property will generally need to be disclosed where it is relevant to the division of assets or financial claims between the parties.
Every Divorce Is Different
No two divorces are exactly the same.
The impact of purchasing property will depend on several factors, including your matrimonial property regime, whether the divorce is contested or uncontested, any settlement agreement reached between the parties, and the timing of the purchase.
For this reason, you should always obtain professional legal advice before making significant financial decisions.
Should You Wait Until After the Divorce?
Although you can buy property while going through a divorce, waiting until the divorce has been finalised may sometimes be the more practical option.
Greater Legal Certainty
Once the divorce has been finalised, there is greater certainty regarding the division of assets, financial responsibilities, and future ownership.
This certainty can make the purchasing process simpler and reduce the risk of unexpected legal disputes.
Every Situation Requires Individual Advice
There is no single answer that applies to every divorcing couple.
For some individuals, purchasing property before the divorce is finalised may be entirely appropriate. For others, delaying the purchase until after the divorce has been concluded may avoid unnecessary legal and financial complications.
An experienced divorce attorney can assess your particular circumstances and help you make an informed decision.
Whether you can buy property while going through a divorce depends on more than simply finding the right property. Your matrimonial property regime, financial circumstances, and the stage of your divorce proceedings all play an important role in determining the legal implications of such a purchase. Understanding these factors before signing an offer to purchase can help protect your interests and prevent avoidable disputes.
At Burnett Attorneys & Notaries, we understand that divorce often involves important financial decisions that extend beyond the courtroom. Our experienced family law team can advise you on matrimonial property regimes, property ownership, settlement agreements, and the legal implications of purchasing property while divorce proceedings are underway. We provide practical, tailored advice to help you make informed decisions and protect your financial interests throughout the divorce process. Contact us to arrange a confidential consultation.