When love strikes, legal decisions about how the knot should be tied are furtherest from most couples' minds. However, just a basic knowledge of the South African Matrimonial Property Act may save much heartache should things unravel.

A person who is unmarried, widowed or divorced has full authority to buy and sell fixed property without consent of any other parties. A person married in community of property may only buy or sell property with the written consent of his or her spouse, or else the contract will be invalid. Persons married out of community of property may buy or sell without the spouse’s consent.

However, consider the following scenarios:

A person may purchase property when he is unmarried. Should he marry in community of property, his wife will become a 50% owner in the property. Should this person subsequently divorce and sell the property, the wife remains a co-owner and will receive whatever portion was decided in the divorce agreement, although at no stage does her name appear on the Title Deed.

Should two persons married out of community decide to purchase property together, they become 50% co-owners. In the case of divorce each remain 50% co-owners, and one may sell his 50% share without the consent of the other party.

Should a seller be married under foreign law, things become quite complicated. In terms of SA law, the country of the husband’s domicile (place of residence) determines the law that applies to the marriage. Under most normal conditions both parties become signatories of the sale agreement, unless it can be proved that the law of the foreign country dictates otherwise. (Safer for both to sign).

If that is not complicated enough, consider Customary Marriages, which can be described as traditional marriages. In terms of the Recognition of Customary Marriages Act 120 of 1998 which came into effect on 15 November 2000, a customary marriage is regarded as a valid marriage. When fixed property is sold, the conveyancer must obtain an affidavit stating the parties are married.

We all believe our ‘I do’ will last forever, but it is nevertheless wise to openly discuss all options before taking this step.

Liz Charles
Principal: Liz Charles Estates, Vanderbijlpark