Marriage contract dictates sale

The marital property regime governing your marriage determines who is required to sign an agreement of sale and the transfer documents in respect of a transfer of immovable property.
In South Africa, you can either marry in community of property or, if the parties enter into an antenuptial contract prior to the marriage, then the marriage is one out of community of property. Where parties are married with an antenuptial contract and deal with immovable property registered in the name of one spouse only, then the consent of the other spouse is not required, as the estates of the spouses are separate.
Where parties are married in community of property, a joint estate exists and any immovable property owned or acquired by the parties would form part of this joint estate. The Matrimonial Property Act provides that a spouse to a marriage in community of property may not perform certain acts without the consent of the other spouse. This includes entering into a contract to purchase or sell or mortgage immovable property. Accordingly, where immovable property is dealt with, neither spouse may act without the written consent of the other spouse.
Practically this means that when selling, purchasing or mortgaging immovable property, both spouses to a marriage in community of property should be a party to the contract of sale and both will be required to sign the transfer documents. The property and the bond, if a bond is to be registered, will be registered in the name of both spouses.
It is also of interest to note that customary marriages, whenever entered into, are now deemed to be in community of property (unless the parties have entered into an antenuptial contract prior to their marriage). The effect of this is that a purchase, sale or mortgage of immovable property will, as in any marriage in community of property, require the written consent of the other spouse and both spouses will be required to sign the transfer documents.
When parties who were married in community of property obtain a divorce, the order of divorce or any agreement between the parties should record what is to happen to any immovable property they own. If the property is awarded to one of the spouses, it is recommended that the procedures laid down in terms of the Deeds Registries Act to formally award the property to this spouse should be complied with soon after the divorce is finalised.
If this is not done at the time, then years down the line when the divorced spouse wishes, perhaps to sell and transfer the property, he/she could encounter problems or delays if the other spouse cannot be located or is deceased or for any other reason will not sign the documents required for transfer.
Carla Martin is a senior associate at Garlicke & Bousfield Inc.
– Property24