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December 04, 2020

The transfer of immovable property after a divorce


When does one become the owner of a fixed property in terms of a divorce settlement agreement?

For example, the settlement agreement may provide that within seven days of the grant of a decree of divorce Mr Jones shall cause his half share of 123 -1st Ave, Orange Grove to be transferred to Mrs Jones.

The date of acquisition of the half share would be the date of the court order and not the date of the agreement between the parties regarding the transfer of the half share. Upon the granting of the order, Mrs Jones only acquires a personal right to compel transfer to her of Mr Jones’ half share.  This right protects her interest in the property against any subsequent claims against Mr Jones’ creditors until it is formally transferred by way of deed of transfer or endorsement into her name.

Section 16 of the Deeds Registries Act sets out how real rights (ownership) of land are transferred:

“Save as otherwise provided in this Act or in any other law the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar…” 

Ownership in land requires an act of registration in the Deeds Office. There are exceptions to this general rule:  the acquisition of ownership through succession, prescription or of an interest in land by virtue of a marriage in community of property (e.g. if the husband owned property and subsequently married in community of property, his wife automatically becomes co-owner of that property and no act of registration is required in terms of the Deeds Registries Act).

It is also possible to amend the divorce order or settlement agreement by executing an addendum to such agreement. The courts have previously ruled that the consent of the court is not a prerequisite to amend the stipulations of the divorce order regarding the redistribution of assets. (Ex parte Boshi and Other 1979 (1) SA 249 and Ex parte Herman 1954(2) 636 (O) and Chief Registrars Circular 21 of 1990. 

In a case where settlement / addendum in relation to property is only reached after the formal court proceedings are finalised, the date of acquisition will be the date that the subsequent settlement is reached, provided that any exemption of transfer duty will only be afforded where the settlement agreement, entered into ex post facto the divorce, has been made an order of court per a recent ruling by SARS. 


Divorce mediation is an alternative dispute resolution process that Kansas couples may use to settle differences on specific issues in a divorce. Spouses may decide on their own to try mediation, or a judge can order mediation in a divorce case. Before you consider or begin mediation, you should have an understanding of how it works.

Editor: this is an American article that has significance in South Africa. Mediation in South African divorces is now compulsory.


By Sloan, Eisenbarth, Glassman, McEntire & Jarboe, LLC, KansasLaw Firm Website: https://www.sloanlawfirm.com/

Our discussion takes into account the provisions of the Kansas Family Law Code that govern mediation in domestic and family matters, as well as Rule 16.3 of the Kansas Supreme Court. The Court Rule designates mediation as the primary ADR process in Kansas litigation matters, addresses the process, and provides for Court approval of private mediators who meet certain requirements.


The statutory definition of mediation in the Kansas Family Law Code contains three important parts that explain the role of a divorce mediator. First, the law states that mediation is “the process by which a neutral mediator … assists the parties in reaching a mutually acceptable agreement as to issues of child custody, residency, visitation, parenting time, division of property or other issues.”

As the law states, a mediator is a neutral third party. While mediators often are lawyers, the mediator does not act as legal counsel for either spouse, nor does the mediator provide legal advice to the spouses during divorce mediation.

The definition goes on to state that the role of a mediator is to assist participants in “identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement.” By working with both spouses in an informal environment, the mediator helps them address their differences, establish priorities, and reach agreement when possible.

Finally, the definition section in the law states: “An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator.” A mediator does not make decisions for the parties or force agreements on the spouses in a divorce mediation. Instead, the mediator explores both spouses’ viewpoints in an effort to identify areas of agreement. All points of agreement in a mediation are based on the spouses’ own decisions, not the mediator’s.


Mediation sessions occur in an informal and safe environment. Only the spouses attend the session. Even if a participant has legal counsel, the lawyer does not attend the session. Some mediation participants do have a lawyer, but not all do. The mediator will suggest to the parties that they consider consulting with an attorney, especially at the end of mediation, but legal representation in a domestic matter is a choice that each person makes.

All discussions during mediation are strictly confidential. Statements made by the spouses in mediation are protected by privilege, with a few necessary limitations, such as reporting threats of violence. Factual information given during mediation may be provided to a participant’s lawyer at the end of mediation if both parties agree to disclosure.

At the beginning of the mediation, the mediator explains the process to the participants. Discussions initially center around identifying the areas in which the participants have differences. After establishing the agenda, the mediator draws on professional skill and experience to encourage productive conversations between the participants, in which they navigate through the issues and negotiate mutually agreeable resolutions if possible.

During the process, the mediator makes certain that the participants fully consider the best interest of children and the consequences of any decision the participants reach relating to the children. The mediator may meet with children and other individuals, if the participants consent.

A mediator will end a mediation if the mediator concludes either that continuing the process will harm or prejudice a participant or affected children or that a participant’s lack of willingness to participate makes a reasonable agreement unlikely.


An agreement in divorce mediation is not binding on the participants or admissible in court unless it is put in writing, signed by both parties and their attorneys (if any), and approved by the court. At the end of mediation, the mediator provides a written summary of the understanding reached by the participants and will suggest that the participants seek legal counsel for assistance in reducing their mediation agreement to writing.


Divorce mediation can be a valuable process, but it is not necessarily the best approach for all divorcing spouses. It may work well in circumstances where spouses are amicable and have some basic agreements but also outstanding differences to resolve.

Divorce mediation can also work in high conflict situations. Mediators have specific approaches and tools to use in resolving conflict between spouses, even when emotions run high. As a neutral outside party, the mediator works to reduce conflict without taking sides by facilitating discussion between the participants. The mediator provides support for both participants equally, while encouraging participants to focus on what course of action is best for them and their family.

Mediation is a flexible and adaptable format that spouses can use as a process for resolving outstanding issues without requiring involvement of a court or judge. As an alternative dispute resolution mechanism, it can save the expense and emotional strain of a protracted battle in court. If you think mediation may work in your divorce case, you should discuss the possibility with your lawyer or with a professional mediator.