Legal Matters - Feb/Mar '26
Dividing the home – transferring immovable property after a divorce
Dividing the home – transferring immovable property after a divorce
By Chrissie Turck and Natasha Nekuta
The process of a divorce also involves the division of all goods owned during the marriage, including movable and immovable property. A key issue in this process is understanding how the transfer of the property occurs, especially when it comes to immovable property. Understanding this procedure will help both parties handle the process efficiently and with legal awareness.
HOW IS IMMOVABLE PROPERTY DEALT WITH IN A DIVORCE?
The court order will determine how immovable properties are dealt with or dissolved between the parties. This depends on the marital property regime and the antenuptial contract (if any), on which the marriage was concluded. The marital property regime directs how the property will be divided between the parties. In Namibia, there are 3 marital property regimes.
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Marriage concluded in community of property: Regarded as the default marital property regime, this is where all assets and debts of both spouses are combined into a single, joint estate. Both partners have equal ownership and management rights over the estate during the marriage which are divided equally at the dissolution of the marriage, whether caused by death or by divorce.
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Marriage concluded out of community of property: Each spouse retains full ownership and control over their individual assets and liabilities. There is no joint sharing of the property and each partner remains financially independent throughout the marriage. Upon the dissolution of the marriage, there is no division of the assets unless otherwise agreed upon.
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Marriage concluded out of community of property (with the accrual system): Assets owned before the marriage remain separate, but any increase in the value of assets obtained during the course of the marriage is shared equally upon dissolution.
There are two ways in which the dissolution of a property takes place, depending on the couple’s marital property regime. This is usually by way of an endorsement or by way of proper transfer of the property from one spouse to another, each bearing different consequences as far as costs and transfer duties are applicable.
Section 45 of the Deeds Registries Act 47 of 1937 regulates the transfer of an immovable property by way of an endorsement. Endorsement simply means changing the name of the owner on the title deed, which involves minimal costs and does not require the literal transfer of the property from one spouse to the other.
Section 45 applies only to marriages concluded in community of property and out of community of property, with the accrual system. In terms of this provision, the spouse who received a full share of the property upon the dissolution of the property will be required to make an application to the Registrar of Deeds to endorse the current title deed, displaying only his or her name as being the owner of the property. If the divorce order indicates that the immovable property is to be divided amongst the parties, both parties will then be required to make an application to the Registrar of Deeds, who will award both parties undivided shares in the immovable property.
The endorsement of the owner of the property also extends to any bonds or leases that may apply to the immovable property. This endorsement will be done to reflect the substitution of the debtor under the bond.
As far as immovable properties in a marital regime concluded out of community of property are concerned, where no directive has been issued in this regard in terms of the court order, the spouse who has ownership will retain his or her ownership. Should there be a transfer of the property from one spouse to another in this regard, the procedure related to proper transfer of the property, inclusive of all related transfer costs and duties, will be applicable.
Article continues in April/May edition with Transfer costs and Transfer Duty.
For any further assistance or legal guidance on divorce proceedings or property transfer matters, contact Chrissie Turck or Natasha Nekuta, Litigators and Conveyancers at WKH Inc., who specialize in these areas and are available to provide expert assistance.
