How to Make Sure You Keep the Home for Your Children After Divorce
Divorce is a challenging process, especially when children are involved. One of the most contentious issues is often the question of who gets the house. In South Africa, the decision about who retains the family home depends on several factors, including the marital property regime, the best interests of the children, and any agreements made between the divorcing parties. At Burger Huyser Attorneys, we are committed to providing clarity and guidance during this complex time.
1. The Role of the Marital Property Regime in Divorce Matters
The division of assets, including the family home, is largely influenced by the marital property regime:
- In Community of Property: If you are married in community of property, the house forms part of the joint estate. Both spouses have an equal share, and the court will decide on its division or who gets to keep it, often considering the children’s needs.
- Out of Community of Property with Accrual: The house may be included in the accrual calculation, and the spouse entitled to a larger share of the accrual may retain the house.
- Out of Community of Property without Accrual: The house belongs to the spouse who owns it, unless otherwise agreed.
2. The Best Interests of the Children
South African courts prioritise the best interests of the children when determining living arrangements. Factors that may influence the decision include:
- Stability: Courts generally prefer to minimize disruption in the children’s lives. This often means allowing the parent who has primary custody to remain in the family home.
- Schooling: Proximity to schools and other essential facilities may influence who gets to stay in the house.
- Financial Capability: The ability to maintain the home and meet mortgage or rental obligations is a key consideration.
3. Negotiated Agreements for Divorcing Spouses
In many cases, divorcing spouses can reach an agreement about the family home through mediation or settlement negotiations. Options include:
- One spouse buying out the other’s share of the house.
- Selling the house and dividing the proceeds.
- Allowing the parent with primary custody to live in the house until the children reach a certain age, after which the property may be sold.
4. What Happens If No Agreement Is Reached?
If the divorcing parties cannot agree on who gets the house, the court will make a decision based on:
- The marital property regime.
- The best interests of the children.
- The financial circumstances of both spouses.
The court’s primary aim is to ensure that the children have a stable and secure living environment.
5. Tips for Resolving Property Disputes
- Seek Legal Advice: Understanding your rights and obligations is crucial.
- Consider Mediation: Mediation can help you reach an amicable agreement and avoid a lengthy court battle.
- Focus on the Children: Keeping the best interests of the children at the forefront can guide your decisions and negotiations.
Contact Burger Huyser Attorneys
Navigating a divorce with children and property disputes can be overwhelming. At Burger Huyser Attorneys, we specialize in family law and are dedicated to helping you achieve a fair and amicable resolution. Whether you need assistance negotiating an agreement or representing your interests in court, our experienced attorneys are here to guide you every step of the way. Contact us today for a confidential consultation and let us help you secure a stable future for you and your children.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE