In our previous article we looked at the concept of domicile and its importance in determining whether the parties are married according to the Laws of South Africa or the laws of a foreign country.

Foreign marriages in particular often prove to be an area of uncertainty for estate agents and the parties involved when it comes to property transactions.

We are often asked the following questions:-

• “The property is only in the husband’s name, must both he and his spouse sign the agreement and what about the transfer documents ?” , or   
• “Do I refer to the sellers as being married in community of property when they can’t produce an antenuptial contract ?”,  or  
• “Do I need to investigate the matrimonial laws of the country where the sellers were married to determine whether they are married in or out of community of property?”

Foreign marriages in property transactions are regulated in terms of section 17(6) of the Deeds Registries Act 47 of 1937 which provides that, any seller who is a party to a foreign marriage will require the assistance of his or her spouse when effecting the registration of a deed in the Deeds Registries office.

A sale agreement is not considered “a deed” as referred to in the Deeds Registries Act, however the transfer documents will be prepared in such a way so as to make provision for the spouse to sign in this capacity (that is, reflecting the buyer/seller in the foreign marriage as being assisted by the spouse).

Therefore, once you have determined that the parties’ marriage is one governed by the laws of a foreign country, in response to the questions raised earlier in this article, the answers are:-

• “No, only the husband must sign the agreement. However, when it comes to the transfer, the conveyancer will require the husband as well as his spouse to sign the power of attorney to pass transfer, the husband as the owner with his spouse assisting him as required in terms of the Deeds Registries Act.”
• “No, the sellers are not referred to as being married in community of property as the matrimonial laws which governs their marriage, would be different to South African laws.”
• “No, you don’t need to investigate the matrimonial laws. If the property is registered in the name of one spouse, he or she will sign the agreement. If the property is registered in the name of both spouses, then both spouses will sign the agreement as they are both registered owners irrespective of their marital regime.

The answer to all questions around contractual capacity is simple, once you have determined that the parties are married according to the laws of a foreign country, as long as you remember that it is the Matrimonial Property Act that governs South African marriages and that this Act has no impact on foreign marriages. Foreign marriages are subject to whatever the regime is in the applicable country, and what the consequences are of such a foreign regime is of no relevance to the sale and transfer of property in South Africa, other than that to effect the registration of any deed in the Deeds Registry Office, the “non involved spouse” needs to assist the other party.

So:

• a South African marriage will always be either one in or out of community of property and for it to be out of community of property there must be a validly registered antenuptial agreement in place; and
• a foreign marriage will always simply be one in accordance with the laws of the applicable foreign country.

 

Article by: Maria Davey