A Property24 reader asks:
I read the article on Property24 re the transfer fees - Property: Live-together couples split .
My ex fiancée and I bought a house +/- 5 years ago and the bond is registered in both our names. We have now decided to split up and she will take over the bond and pay me RX amount, but according to my attorney she must still pay the transfer fees as we were not married. The attorney said that there is no reference in the tax laws regarding common law marriages for couples that split up.
Please could you advise?
Ulrik Strandvik, a director in the Cape-based legal firm, Gunstons Attorneys replies:
Firstly, please note that there is difference between transfer costs and transfer duty.
Transfer costs are the costs payable to the attorney as a fee to attend to the registration of the transfer. This will always have to be paid when a transfer is registered. Transfer duty is the tax payable to SARS in respect of transfer of properties. The payment of transfer duty is in certain circumstances exempt.
Coming to your question: Since 25 July 2006 transfers between divorced spouses is exempt from transfer duty in terms of section 9(1)((i) of the Transfer Duty Act.
The definition of “spouse” in the Transfer Duty Act includes a partner in “a same sex or heterosexual union which the Commissioner is satisfied is intended to be permanent”. As such, if you can satisfy SARS that your relationship was intended to be permanent, you would be seen as a spouse and the transfer of property between yourselves on dissolution of the relationship will be exempt from transfer duty.
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