The short answer
If your mother and father divorced, they would each be entitled to 50% of the joint estate created by being married in community of property.
The whole question
Dear Athalie
I am a graduate but am unemployed and living at the church. My father is married to my mother in community of property but he disappeared for a number of years, so my mother moved in with her mother. The RDP house in Daveyton stood empty and was eventually illegally occupied by others. When my father returned, he had a new girlfriend who he wanted to marry. The family rejected this so the pair moved back to the woman's RDP house in Pretoria. They came back because the girlfriend's husband was threatening to kill my father. We are struggling to evict the people in the Daveyton house, and my father is disengaging himself from the process. Legal Aid doesn't want to help me and my mother because her name doesn't appear on the title deed. They said we should go to the deeds office but we cannot afford the fees to add her name to the title deed.
The long answer
This is indeed a painful and confusing scenario and a number of questions arise: did your father and mother ever occupy the RDP house in Daveyton that they were awarded in 2005? How did it become occupied by squatters or illegal occupants? Have they made any attempt to get it back?
Perhaps it would be worth going to the municipality through which your parents got their original 2005 house and find out how it came to be occupied by squatters and if, and how, you could get it back. The government supports RDP houses staying in the family and being inherited by the children of those who got the subsidy.
However, you cannot evict anyone, even if they are illegal occupants, without a court order. And the occupants who may have been there for years would also be entitled to appear in court on the day that the case was heard and put their side of the story. The court would have to weigh up what was fair and just to both parties before coming to a decision.
I don’t know if I am understanding you correctly to be saying that your father was awarded another RDP house in 2015 that he did not inform the family about when you say: “In 2015 New RDP projects were completed in Daveyton and Dad didn't inform us or mom about the RDP allocation, since he was nowhere to be found from 2009 to 2016.”
In case that is what you are saying, let’s just be clear that a person can only ever be awarded one RDP house. When they make an application for an RDP house, both the couple’s names are recorded by the municipality, even if the title deed is only in your father’s name. That means that if they divorce and take another partner, neither of them is eligible for another RDP house. So if your father was allocated another one in 2015, that was certainly illegal.
Are the title deeds for the Pretoria RDP house that you have in your possession in the name of your father’s girlfriend? If so, I am not sure why you have them.
It would indeed be good for your mother’s name to be added to the title deeds of the 2015 house. But as you say, the cost of a conveyancing attorney to do this is very high, and any changes to title deeds are legally required to be done by a conveyancing attorney.
As your father has now left the family altogether and appears to be more committed to the girlfriend and her children who are now occupying his RDP house in Daveyton than to his marriage, it may be worth your mother seeking advice about a divorce. By the way, if your father is married in a civil marriage to your mother, rather than a customary one, he may not legally marry a second wife. He could only take a second wife if he and your mother were married under customary law, and even then, he would need your mother’s consent and he would have to get a court order which laid down exactly how the property was to be divided between the wives and their children.
If your mother and father divorced, they would each be entitled to 50% of the joint estate created by being married in community of property. This could mean that they agree that one of them keeps the house and pays financial compensation to the other for their 50% share. It could also mean that the house could be sold and each of them would get 50% of the money.
You and your mother could ask for advice and assistance on her situation from one of the following organisations:
The Black Sash which gives free paralegal advice:
Email: help@blacksash.org.za
Helpline: 072 66 33 73
ProBono.org (which will take a case on for free if they decide that it’s in the public interest)
Email: info@probono.org.za
Johannesburg: 011 339 6080
Cape Town: 087 806 6070/1/2
The Socio-Economic Rights Institute of South Africa (SERI):
WhatsApp, call or “please-call-me” to 073 226 4648 / 071 301 9676 / 083 720 6600;
Email: sanele@seri-sa.org
The Women’s Legal Centre Trust
Helpdesk Queries: info@wlce.co.za
Cape Town tel: 021 424 5660
Wishing you the best,
Athalie
Answered on May 19, 2023, 10:07 a.m.
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