How does your marriage status affect you when buying property in South Africa?

It is important for an estate agent to ask the question – how the parties are married from mandate stage when dealing with property. The reason for this is to establish the legal capacity of all parties in terms of the agreement.

Ardene Nel, an Attorney at Hammond Pole Attorneys, explains how your marriage status could affect you when buying property in South Africa.

South African Marriage Regimes

The following are various types of marriage regimes in South Africa:

• Civil Marriages
• Civil Unions and Partnerships
• Customary Marriages
• Foreign Marriages

Let’s have a brief look at each regime individually to better understand how this could affect you when buying property with your spouse or partner:

A Civil Marriage is the type of marriage only entered into between a man and a woman.  Such a marriage can either be in or out of community of property. A civil marriage will automatically be ICOP (“in community of property”), unless the persons enter into an ante nuptial contract, indicating that the marriage will be OCOP (“out of community of property”), with or without the accrual system. 

• Marriage In community of property: It is important to remember that parties who have entered into a marriage ICOP have limited contractual capacity concerning certain acts. This means that they need the written consent from their spouse before entering into any contract that forms part of the joint spouses estate.  
• The only way a spouse may enter into an agreement without the consent of the other spouse, is when the act is specifically excluded from the marriage. eg- if a spouse inherits in terms of a will and the will specifically excludes the marriage.

Marriage out of community of property with or without accrual–  Parties married in terms of this regime do not have limited contractual capacity and can act without their spouse’ consent.

If you require assistance with setting up an antenuptial agreement before getting married, view more on Hammond Pole’s website, here: https://www.hammondpole.co.za/index.php/family-law

The second marriage regime is a Civil Union, or Partnership, which in terms of the Civil Union Act of South Africa,  allows same sex partners to enter into a legal and binding relationship.

This relationship is identical to a marriage, which means that the parties who have entered into this type of relationship, have exactly the same rights and legal responsibilities, as a marriage, which is concluded in or out of community of property.

“Customary Unions, after 1988, deemed to be married in community of property….”

Thirdly, our legal system recognizes the validity of Customary Unions and their prevalence in our society.   The law surrounding customary Marriages can however be complex and it is therefore important to understand how our legal system, in this regard, has developed throughout the years in South Africa;

• Prior to  2 December 1988, in terms of The Black Administrations Act 38 of 1927, any customary marriage was deemed to be out of community of property. The parties could however change this status and declare their marriage to be in community of property in the presence of a Magistrate, within one month after the celebration of their marriage. 
• From 2 December 1988 however Civil Unions and Customary Marriages were put on par with each other which meant that all parties who got married in terms of he Black Administrations Act 38 of 1927 were deemed to be married in community of property, unless they had entered into an antenuptial agreement.
• Any customary marriage concluded prior to 15 November 2000, had to be registered as a Customary Union within 12 months from the 15th of November 2000, which is the date The Recognition of Customary Marriages Act 120 of 1998 came into force,   or within such a time period as prescribed by the Minister. What should be remembered is that the capacity of the spouses to act, are governed and prescribed by the customary law.
• • Both spouses must have reached the age of majority (ie: be above the age of 18 years old);
  • Both spouses shall be in agreement that they will be married under customary law;
  • The marriage negotiations, rituals and celebrations must be according to customary law.

If you like to find out more, contact Hommond Pole Attorneys today!

• Any marriage that has been entered into after 15 November 2000, must be registered within 3 month after the conclusion of the marriage or after such time the Minister may allow. Parties who enter into a marriage after this date will be deemed to be married in community of property, unless they have entered into and signed an antenuptial contract prior to the date of marriage.

Next, we look at Religious Marriages which are not currently recognized in South African law.  The lack of recognition of these marriages is an ongoing legal debate with many interpreting this lack of recognition as being in conflict with our Constitution, which guarantees the rights to freedom of religion.

These marriage regimes can include:

• Marriage by Hindu Rites, governed by the beliefs of the Hindu faith. The only way to enforce the legal consequences of such a marriage would be in terms of the Marriage Act which would require the marriage to be registered as a civil marriage. If parties are married by Hindu rites, and no civil marriage is registered, then for the purposes of a property transaction, the parties are regarded as unmarried.  One may refer to him or her as being married in terms of Hindu rites, but the consequences will be equivalent to being an unmarried person.
• Marriage by Islamic Rites are not recognized in terms of the legal consequences that follow from a civil marriage. There are however a series of cases which indicate that Islamic marriages are recognized. For example, the spouse in an Islamic marriage is regarded as a spouse for the purposes of intestate succession meaning a surviving spouse can inherit from the estate of his/her deceased spouse.
• Marriages by Muslim Law, will only be valid, where such a marriage is solemnized by a marriage officer that is duly authorized and registered as such in terms of the Marriage Act. 

Lastly, we look at Foreign Marriages, and until constitutionally challenged, a foreign marriage is governed by the laws of the country were the husband reside at the time when the marriage was concluded.

• This means that you should always look at the place where the husband was domiciled at the time of the marriage. Should it be that the place of domicile is not South Africa, the spouse will have to duly assist their partner in the transaction. 
• It will be required that the spouse acts as an interested party and will be required to sign all the documents pertaining to the transaction. 
• This however does not mean that the spouse who duly assists will be regarded as a registered owner of the property. 

If you have any questions, contact our team of Property Law and Family Law Attorneys today! 

Call us on: (011) 874 1800 or email: info@hammondpole.co.za