Who Keeps The House In A Divorce?
The family home is often one of the most valuable assets a couple owns, but its importance can extend far beyond its financial value. It may be where your children have grown up, where you have invested years of money and effort, and where one or both spouses hope to remain after separating. Understandably, one of the biggest concerns when a marriage ends is: who keeps the house in a divorce?
Who keeps the house in a divorce depends on factors such as your matrimonial property regime, ownership, divorce settlement and financial circumstances. One spouse may retain the home, sell it and divide the proceeds, or deal with it according to a court order.
There is no automatic rule that the husband, wife, primary caregiver or spouse who paid the bond will always receive the family home. How property is dealt with during a South African divorce depends largely on the couple’s matrimonial property regime and whether they can agree on what should happen to the property. Below, we look at who keeps the house in a divorce and the different ways the family home may be dealt with when a marriage ends.
What Determines Who Keeps The House In A Divorce?
Before deciding what should happen to the family home, you must establish how the spouses are married and how the property is legally owned. These factors can significantly affect each spouse’s rights.
Your Matrimonial Property Regime Matters
If you are married in community of property, you and your spouse generally share a joint estate. This means the family home may form part of that joint estate, even if only one spouse’s name appears on certain documentation or one spouse contributed more financially to the property.
If you are married out of community of property, the position can be different. You will need to consider property ownership, the terms of your antenuptial contract, and whether the accrual system applies.
For this reason, there is no universal answer to who keeps the house in a divorce. You would first need to establish the legal and financial circumstances of the particular marriage.
What Can Happen To The Family Home?
Keeping the house is not the only possible outcome during divorce. Depending on the circumstances, divorcing spouses generally have several options for dealing with the property.
One Spouse May Keep The Property
Spouses may agree that one of them will retain the family home as part of their divorce settlement.
Where both spouses have an interest in the property, the spouse retaining it may need to compensate the other spouse for their share, depending on the matrimonial property regime, the value of the property and the terms of the settlement.
You would also need to consider the existing home loan. Simply agreeing that one spouse will keep the property does not automatically release the other spouse from obligations towards the bank. The financial institution’s requirements must be satisfied before the necessary changes can be implemented.
You Could Sell The House
In some divorces, neither spouse can afford or wishes to retain the family home. The parties may then agree to sell it and deal with the net proceeds in accordance with their matrimonial property regime or divorce settlement.
Selling can sometimes provide a cleaner financial separation, particularly where maintaining the property or taking over the bond would place too much financial pressure on one spouse.
The Court May Ultimately Determine What Happens
Where spouses cannot agree, the issue may need to be resolved as part of the divorce proceedings.
The outcome will depend on the parties’ legal rights, their matrimonial property regime, ownership of the property and the broader circumstances of the divorce.
Does The Person Who Paid For The House Automatically Keep It?
A common misconception is that the spouse who paid the deposit, bond instalments, or most household expenses automatically gets to keep the property.
Financial Contributions Are Not The Only Consideration
Whether this is relevant will depend on how the couple is married and how the property forms part of their respective estates.
For example, in a marriage in community of property, the spouses generally share a joint estate. It is therefore not necessarily as simple as determining which spouse earned more or made the monthly bond payments.
For couples who are married with an ANC out of community of property, ownership and the provisions of the antenuptial contract become particularly important. Where the accrual system applies, the value of a spouse’s estate may also affect the eventual financial calculation at divorce.
What If Children Are Living In The Family Home?
When children are involved, parents often understandably want to minimise disruption to their lives. However, having primary care of the children does not automatically mean that a parent becomes the owner of the family home.
The Children’s Needs May Still Be Relevant
The best interests of the child are an important consideration in matters affecting children during divorce. Maintaining stability in accommodation and schooling may therefore form part of broader negotiations concerning the family’s arrangements.
However, questions about the ownership and division of property must still be dealt with under the applicable matrimonial property regime and property law.
In some circumstances, spouses may negotiate arrangements that allow a parent and the children to remain in the home for a particular period before the property is sold or transferred. The suitability of an arrangement like this will depend on the individual family and its financial circumstances.
What If Both Spouses Want To Keep The House?
The question of who keeps the house in a divorce becomes more difficult when neither spouse is willing to give it up.
Negotiation May Provide A Practical Solution
Before resorting to litigation, spouses may attempt to negotiate an arrangement through their attorneys or mediation.
This could involve obtaining a professional valuation of the property, determining the outstanding bond and establishing whether either spouse can realistically afford to take over the property.
These practical considerations matter. Wanting to keep the family home and being financially able to do so are not always the same thing.
Consider The Long-Term Financial Impact
Keeping a home after divorce can bring emotional stability, but it may also bring significant financial responsibility.
Bond repayments, municipal charges, insurance, maintenance and other property-related expenses must all be considered. A settlement that leaves one spouse with a valuable property but insufficient cash flow to maintain it may not be sustainable.
It is therefore important to consider the long-term financial consequences rather than deciding solely because of an emotional attachment to the home.
Can You Decide What Happens To The House In A Divorce Settlement?
Not every decision about property needs to be made by a court. Where spouses can reach agreement, the treatment of the family home can form part of their broader divorce settlement.
Record The Agreement Clearly
A divorce settlement agreement can specify whether the property will be sold, transferred to one spouse or dealt with in another agreed manner.
It should also address practical matters where appropriate, such as responsibility for the bond, costs associated with the property and the steps required to implement the agreed transfer or sale.
Having these arrangements properly documented can reduce uncertainty and help prevent disputes after the divorce has been finalised.
So, who keeps the house in a divorce? There is no automatic answer. The outcome depends on your matrimonial property regime, ownership of the property, financial circumstances and whether you and your spouse can reach an appropriate settlement.
At Burnett Attorneys & Notaries, we understand that deciding what happens to the family home can be one of the most difficult financial aspects of divorce. Our experienced family law team can advise you on your matrimonial property regime, property ownership, divorce settlements and the division of assets, helping you understand your rights and available options.
Whether you hope to retain the family home, are considering a sale, or are facing a disagreement with your spouse over the property, we can provide clear, practical, and discreet legal guidance throughout the divorce process. Contact us to arrange a confidential consultation.