When a person married in community of property is awarded their former spouse’s share in jointly owned property following a divorce, they can apply to the registrar of deeds for an endorsement of the title deed. This endorsement records that the applicant is now the sole owner of the property and can deal with it as if it were originally registered in their name. This article will discuss the contents and requirements of the section 45bis(1)(a) endorsement application under the Deeds Registry Act.

Section 45bis(1)(a)

An application in terms of section 45bis(1)(a) of the Deeds Registry Act applies only to marriages in community of property that have been dissolved by divorce. If the parties divorce and one spouse is awarded the share of the former spouse, the Registrar may endorse the title deed of the property, confirming that the spouse is entitled to deal with the property as though they had formally taken transfer of the former spouse’s share. The endorsement effectively transfers the half share of the former spouse to the spouse entitled to it.

The spouse receiving the share is the applicant and signs the application. If a bond is registered over the property, it must either be cancelled, or the half share being transferred must be released from the bond. Alternatively, the spouse forfeiting the share must be released from the bond, and the spouse acquiring the share must be substituted as the sole debtor under the mortgage bond.

Documents Required
The following documents must be submitted to the deeds office:
1. Application by the registered owner of the immovable property, stating the reason for the application. This may
be due to a divorce agreement that was made by an order of court or a redistribution agreement following the
divorce.
2. Divorce order or settlement agreement, granted by the court, along with the redistribution agreement, if
applicable.
3. Title deeds to be endorsed in terms of section 45bis of the Act.
4. Bond documents if the immovable property is encumbered by a bond. The bond and either bond cancellation
or substitution agreement must be submitted.
5. Transfer duty exemption certificate from SARS.
6. Clearance certificates (e.g. rates clearance certificate).

In conclusion, the section 45bis(1)(a) application offers a crucial, quicker, and more cost-effective mechanism for spouses who were married in community of property to transfer one spouse’s half share of immovable property to the other following a divorce. The application is not mandatory and the Deeds Registry may, under certain circumstances, still require a formal transfer to be done. 

Reference list:
1.  A. West “The Practitioner’s Guide to Conveyancing and Notarial Practice”

WRITTEN BY SINAZO MAU-MAU

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