A court-driven solution to end co-ownership in Divorce

When divorcing spouses cannot agree on what to do with jointly owned property, the deadlock can cause financial hardship - particularly for the spouse responsible for daily expenses and the care of minor children. Prolonged indecision often leads to mounting arrears and stagnant assets.

A recent matter involving Barnard demonstrates this challenge. Several immovable properties remain unused while the parties dispute whether the assets should be sold, transferred, or retained. In such cases, the Roman Dutch remedy known as actio communi dividundo may be used to break the impasse and compel division.

What is Actio Communi Dividundo?

This remedy allows any co-owner who no longer wishes to remain in undivided ownership to approach the court for relief. The court may:

1. 1. Order the property to be sold at public auction,
2. 2. Award ownership to one party subject to a balancing payment, or
3. 3. In rare cases, order a physical subdivision.

The central aim is to bring an end to co-ownership on terms that are just and equitable.

Divorce Context and Legal Precedent

Recent High Court judgments confirm that actio communi dividundo is available within divorce proceedings, especially where negotiations fail or one spouse withholds cooperation.

To succeed, the applicant must present:

1. 1. Proof of co-ownership (e.g., title deeds or deeds office printouts); and
2. 2. A practical proposal for dividing the asset or proceeds.

The Practical Advantages

• • Finality – The order brings an end to the deadlock.
• • Liquidity – Sale or division releases funds for maintenance and daily expenses.
• • Asset Preservation – Timely action prevents deterioration of vacant properties and reduces interest accumulation on bonds.
• • Procedural Clarity – The order is enforceable and avoids extended litigation.

Key Supporting Documents

• • Title deeds and property records;
• • Market valuations;
• • Correspondence indicating the parties' original intentions; and
• • Evidence of household and child-related expenses, if relevant to the distribution.

When negotiations reach an impasse, this remedy equips the court with the necessary authority to divide immovable assets and restore financial stability.

Related articles to this series:

• • The Accrual System in Divorce
• • Forfeiture of Accrual