This all depends on the marital contract you both signed when you got married. Let’s take a look at the various marriage contracts and how it affects the sale of the property.

In Community of Property means that no matter whether the house was bought before marriage or whose name it’s in it, once the house is sold the profits get split down the middle. Something to take note of if you are in a traditional marriage: According to the Recognition of Customary Marriages Act, these couples are automatically regarded as being married in community of property.

Out of Community of Property With Accrual means if the home was bought during the marriage, it may be sold, with the net proceeds split between the couple, or either party can buy the other out. If the couple chooses the latter option, the transfer of the half-share of the property will be exempt from transfer duty. If the property was bought before the marriage by one of the individuals and was not excluded in the antenuptial contract, it will go to the spouse in whose name it is registered.

Out of Community of Property Without Accrual means the spouses’ estates remain entirely separate. In other words, both partners retain the assets they had before the marriage, as well as any assets accrued during the marriage. In this case, if one spouse owns the property, the net proceeds go to this person. If both own the property, the net proceeds are split equally.

A divorce agreement can override the terms of a couple’s marital contract so both spouses can agree on how they want to divide the net proceeds from their property no matter how they married. However, if they cannot reach an amicable agreement, the property will be divided according to the marriage contract.

The court can get involved and use its own discretion on how the property is divided if misconduct can be proved against a spouse. For example, if there has been abuse in one way or another in the marriage.

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