Foreign & Customary Marriages and the implication on the South African Property Law
Hammond Pole Attorney, Neill Mc Kinon tells us more about Foreign & Customary Marriages, and the implications thereof when it comes to conveyancing.
Marriage in South Africa whether religious or by way of civil union comes with a set of consequences applicable to the transfer of immovable property. The same can be said about foreign and customary marriages.
Firstly, whilst foreigners living in South Africa are entitled to own property, the consequences of a foreign marriage must always be taken into account when acquiring and disposing of immovable property.
When it comes to dealing with married persons in South Africa, the Marriage Act 25 of 1961 legislates the consequences of marriage and the impact it will have on ownership of immovable property. Certainly, a marriage in Community of Property would have serious consequences on the disposal of property or the bonding of the joint estate. But what about the laws of a foreign country?
Given that property professionals in South Africa would not be familiar with the laws of every country, the Deeds Registries Act 47 of 1937 offers some guidance. In this regard, section 17(6) provides that the consent of the spouse of a foreigner is required when disposing of property or bonding it as security for a home loan. This marital consent however, would not necessarily be required in circumstances where a foreigner is acquiring property. This is because the estate is being enhanced.
The rationale behind insisting on the spouse’s consent, is that in a situation where the consequences of a foreign marriage are tantamount to that of a marriage in community of property, the rights of both spouses are effectively taken into account and thereby protected.
Therefore, real estate agents dealing with clients married according to the laws of a foreign country should be alive to the consequences of such marriage.
In the circumstances, when dealing with foreigners they would always be described in an offer to purchase and on deeds as married according to the laws of that country and assisted by the spouse as far as may be necessary.
In conclusion, the assistance of the spouse of a person married in a foreign country is of special importance in the conveyancing process.
What Does the South African Constitution state?
In terms of marriages in South Africa, the Constitution provides for the recognition of all races and cultures in South Africa. In fact, in 1998 special recognition of marriages according to customary law was promulgated and the laws in South Africa were duly amended.
Customary marriages in South Africa take on two forms. Either they are monogamous or polygamous. Both are recognised in so far as they comply with recognised tradition and of course the Recognition of Customary Marriages Act 120 of 1998.
In terms of the legislation, certain customs and traditions are observed amongst indigenous people in South Africa. The Act also has retrospective effect and effectively two positions are considered, namely; traditional marriages entered into before the commencement of the Act (15 November 2000) and traditional marriages entered into after commencement of the Act.
Customary marriages entered into before commencement of the Act are recognised if such marriages are valid according to tradition and are registered at the Department of Home Affairs. These marriages are considered to be In Community of Property. The consequences of such marriage would then be regulated in terms of the Marriages Act and a joint estate would be applicable. In this instance, each party would own 50% of the joint estate. See our article on Civil Marriages for a further explanation of a joint estate and Marriage in community of property.
Customary Marriages entered into after commencement of the Act are recognised and are considered to be valid only if such marriage meets the requirements of the Act and are registered at the Department of Home Affairs. These marriages can be either In Community or Out of Community of Property. To be recognised as Out of Community, the parties would need to enter into an Antenuptial Contract and have it registered at the Deeds Office. This would mostly apply to monogamous marriages where one partner is chosen.
But what about Polygamous marriages?
Again, a distinction is drawn between marriages before and after the commencement of the Recognition of Customary Marriages Act.
Polygamous marriages entered into before commencement of the Act are recognised and continue to be governed by Customary Law. In this instance both spouses have full capacity and the consent of the other spouse is not required. It goes without saying that in time, these marriages will of course become redundant.
Polygamous marriages entered into after commencement of the Act require an application to court to obtain approval of a contract determining the proprietary consequences of such marriage. In practical terms, this means that if a person were to marry his first wife and not register an Antenuptial Agreement, he would be married In Community of Property. However, if the same person were to enter into a second marriage while still married to his first wife, he would need to obtain a court order approving the consequences of such marriage. The rational behind that is to protect the first spouse who effectively owns 50% of the joint estate.
In the absence of obtaining a court order and the first marriage is “In Community of Property”, the second marriage although still recognised would be considered as Out of Community of Property. The same would apply to his second, third and fourth wife.
In both sets of circumstances, the customary marriage would need to be registered at Home Affairs in accordance with the legislation.
In conclusion, the consequences of marriages are of great importance in our laws and the consent of the other spouse becomes significantly important in completing documents acquiring or disposing of immovable property.
For more assistance and this and other topics, please email info@hammondpole.co.za or contact our office on 011 874 1800.