Divorcing couples must still pay rent

Is the lease on a home tenanted by a couple married in community of property automatically cancelled if the couple gets divorced?

Not necessarily, and RentalsDotCom, the rental property management division of Harcourts Africa, notes that there have been court decisions that the landlord is entitled to continued payment of rental in such cases, until the lease either expires or is properly cancelled.

CEO Martin Schultheiss says, though, that while this is good news for both landlords and letting agents, it leaves unanswered the question of who will actually be responsible for the payment of the rent in such cases – unless provision for this eventuality has been made in the original lease

“What is clear, fortunately, is that if one former spouse has already paid all the rent in advance for the full lease period, he or she only has a right of recourse against the other former spouse for half the amount – not against the landlord.”

Meanwhile, he says, neither landlord nor letting agent should allow themselves to be drawn into disputes between divorced spouses about which of them has the right to occupy a property they originally leased together.

“Divorce of course means that the property no longer provides a matrimonial home for the couple – but legally, a lease which originally entitled both of them to occupy the property means neither can insist on exclusive occupation, and that neither will succeed in having the other evicted.

“How they should or could resolve this uneasy state of affairs, though, is not for the landlord or letting agent to say. Indeed, it will probably depend on the divorce order and thus be a Court decision.”