Who Pays The Bond While A Divorce Is Pending?
A divorce can take time to finalise, but household expenses and financial commitments continue in the meantime. When spouses own a home together, one of the most pressing concerns is often what happens to the monthly home loan repayments while the divorce is underway. So, who pays the bond while a divorce is pending, particularly if one spouse has already moved out of the family home?
Who pays the bond while a divorce is pending depends on the spouses’ financial arrangements, matrimonial property regime and any interim agreement or court order. Until the property or home loan is formally dealt with, existing obligations generally remain in place.
Moving out of the family home does not necessarily end a spouse’s financial responsibilities for the property. The bond still needs to be paid, and the agreement with the bank exists separately from the divorce proceedings. Below, we explain who pays the bond while a divorce is pending, what happens when one spouse stops contributing, and how to manage temporary arrangements until the divorce is finalised.
Who Is Responsible For The Bond During A Divorce?
Starting divorce proceedings does not automatically change the obligations attached to a home loan. Before deciding who should make the monthly payments, it is important to distinguish between the spouses’ arrangements and their obligations to the bank.
The Home Loan Agreement Still Applies
Where both spouses are parties to the home loan agreement, divorce proceedings do not automatically release either of them from their contractual obligations towards the bank.
Even if one spouse moves out, the bank is not necessarily bound by a private agreement between the spouses stating that the other person will take responsibility for the bond.
This means you cannot determine who pays the bond while a divorce is pending simply by looking at who currently lives in the property. The home loan agreement, property ownership, and the couple’s matrimonial property regime must all be considered.
Your Matrimonial Property Regime Matters
For couples married in community of property, the family home and associated liabilities will generally form part of the joint estate, subject to the particular circumstances.
Where spouses are married out of community of property, ownership of the home and responsibility under the home loan agreement may need to be considered separately. The terms of an antenuptial contract and whether the accrual system applies may also affect the broader financial consequences of the divorce.
What If One Spouse Moves Out Of The Family Home?
It is common for one spouse to leave the family home before a divorce is finalised. However, moving out does not automatically settle the financial issues surrounding the property.
Leaving The Home Does Not Automatically End Bond Obligations
A spouse may understandably feel that they should no longer have to contribute towards a property they are not occupying. Legally and financially, however, the position may be more complicated.
If that spouse remains liable under the home loan agreement, simply moving elsewhere does not remove that liability. Broader considerations may also apply, including the joint estate, maintenance, and the eventual division of assets.
For this reason, spouses should avoid assuming that physical occupation of the home determines who is responsible for paying the bond.
Temporary Arrangements Can Be Agreed Upon
Where possible, spouses can agree on how they will manage household expenses while the divorce is pending.
For example, they may agree that the spouse remaining in the property will pay the bond, or that both will continue contributing in agreed proportions. They may also need to decide who will pay rates, utilities, insurance and other property-related expenses.
Recording these arrangements clearly can help reduce misunderstandings while the divorce proceeds.
What Happens If One Spouse Stops Paying The Bond?
Disagreements over money are common during divorce, but simply stopping bond payments can have consequences extending beyond the dispute between the spouses.
The Bank Is Separate From The Divorce
A home loan is a contractual arrangement with a financial institution. Spouses divorcing does not suspend the bank’s rights under that agreement.
If required payments are not made, arrears can accumulate, and the lender may take steps available under the loan agreement and applicable law. Missed payments may also have financial consequences for the parties responsible for the debt.
Protecting the property and maintaining payments may therefore be important even while spouses disagree about who should ultimately bear the expense.
Keep Records Of Payments
If you continue paying the bond or other significant household expenses during divorce proceedings, keep clear records.
Bank statements, proof of payments and records of property-related expenses can help establish what each spouse contributed while the divorce was pending. Your attorney can then advise whether and how those contributions may be relevant to negotiations or the final settlement.
Can A Court Decide Who Pays The Bond While A Divorce Is Pending?
When spouses cannot agree on interim financial arrangements, they may need legal assistance rather than allowing payments to fall into arrears.
Interim Financial Relief May Be Available
In divorce proceedings in the High Court, Rule 43 of the Uniform Rules of Court provides a mechanism for a spouse to seek certain forms of interim relief while the divorce is pending. In the Magistrates’ Courts, Rule 58 provides a corresponding procedure.
Depending on the circumstances, interim maintenance arrangements can address financial support while the parties wait for the divorce to be finalised.
The appropriate approach depends on the facts of the case, including the parties’ respective financial positions, household expenses, and the needs of any children.
The Final Divorce Settlement Is A Separate Issue
An interim arrangement about paying the bond does not necessarily determine who will ultimately keep the property.
The final divorce settlement or court order must address the division of the spouses’ assets in accordance with their matrimonial property regime and circumstances. The house may eventually be sold, transferred to one spouse or dealt with in another legally appropriate way.
What If One Spouse Wants To Keep The House?
Sometimes the spouse remaining in the property hopes to retain it permanently after the divorce. Continuing to pay the bond during the proceedings does not, by itself, determine ownership after divorce.
The Property Must Be Dealt With In The Divorce
If one spouse is to retain the family home, the divorce settlement agreement or court order should address this properly.
Depending on the circumstances, the spouse keeping the property may need to compensate the other spouse for their interest. The bank will also need to approve any proposed change to the home loan arrangements.
A divorce order cannot force a financial institution to release a borrower from contractual liability without addressing the necessary banking and transfer requirements.
Consider Whether Keeping The Property Is Affordable
Balance the emotional desire to remain in the family home against the financial reality of maintaining it independently.
Bond repayments are only part of the cost. Before agreeing to keep the property, consider rates and taxes, levies where applicable, insurance, utilities, and maintenance.
Understanding these costs early can help spouses negotiate a more sustainable divorce settlement.
Should You Continue Paying The Bond During Divorce?
Because every couple’s circumstances differ, no universal rule determines who pays the bond while a divorce is pending.
Do Not Stop Payments Without Advice
Stopping payments unilaterally can create additional financial and legal difficulties. Before changing an established arrangement, it is advisable to understand your obligations under the home loan, your matrimonial property regime and any interim maintenance arrangements that may apply.
If paying the bond becomes unaffordable or you disagree about who should contribute, early legal advice may help you identify an appropriate solution before significant arrears accumulate.
So, who pays the bond while a divorce is pending? The answer depends on the home loan agreement, matrimonial property regime, financial circumstances and any agreement or interim court order between the spouses.
At Burnett Attorneys & Notaries, we understand that managing a family home and its financial obligations can be one of the most stressful aspects of divorce. Our experienced family law team can advise you on bond payments, matrimonial property regimes, interim financial arrangements, Rule 43 or Rule 58 proceedings, and how to treat the family home in your divorce settlement. Contact us to arrange a confidential consultation.