Property vs Marital Status
PARTIES MARRIED IN COMMUNITY OF PROPERTY
- Even if the property is registered only in the name of one spouse, both of them need to sign
the transfer documents. Only one has to sign the offer to purchase and mandate as long as they have written consent of the other to sign on their behalf.
- The reason
why a property is sometimes only
registered in the one parties’ name is because:
- A mistake could have been made at the time of registration- we need to bring an application for rectification of the title deed simultaneously
with the transfer
- The party could get married after acquisition of the property and never added -his/her spouse’s
name to the documents- however, by law, both are legal owners of the property.
- When parties married in community of property buy a property,i.t.o Alienation
of Land Act either spouse can sign the Offer to Purchase for the acquisition of immovable property and thereby bind the joint estate, however in order to effect the transfer both parties must sign the transfer documents.
DIVORCEES WHO WERE MARRIED IN COMMUNITY OF PROPERTY
- If parties were married in community of property and then get a divorce before selling the property, by law they have to endorse the title deed of the property in terms of section 45(bis) of the deeds registries act to remove the one spouse’s name from the title deed in terms of the divorce degree.
- Sometimes the divorce degree only reads: “division of the joint estate”- in such a case we do an amendment to the divorce degree in terms of an agreement between the parties and we refer to the divorce degree as well as the amended settlement agreement in the application for endorsement in the deeds office;
- When an endorsement is done, cost is calculated at 75% of the normal tariff fee calculated on the value of the property. Important
to note is that any divorce after2006 has the result that no transfer duty is payable when the endorsement is done. If they got divorced before 2006, they pay transfer duty as well as penalties on the transfer duty for late payment.
- Due to the fact that the endorsement attracts transfer fees, the parties can elect not to do the endorsement but rather to sell the property. In such a case, both parties will sign the Offer to Purchase and the transfer documents.
- Sometimes you will find a seller who says he/she is the sole owner of the property but the deeds search still show the ex-spouse to be co-owner. In such a case the most cost effective way is to let the ex-spouse sign the Offer to Purchase and the transfer documents as co-seller, however,
he/she will not be entitled to the proceeds. The danger is that if the value of the property has increased after the divorce, you sometimes find an ex-spouse suddenly demanding
a share of the increased value and, although he or she is not entitled thereto, they can nevertheless delay the transfer process.
- In cases of that nature, rather let the one party sign the otp and transfer documents and bring the endorsement application
as a linked transfer to remove the name of the other documents and will not have insight in the offer to purchase.
- If an ex-spouse refuse to sign transfer documents/ endorsement
documents, a High Court application
can be brought for his/her refusal to comply with the divorce order.
- If the immovable property was acquired before or after the date they got married in community of property, the property is automatically an asset in the joint estate whether it is registered in the Deed Office on one or both parties’ names
and therefore both
parties must sign the Offer to Purchase and transfer documents even
if they are divorced.
- Even if one of the divorced spouses got re-married in the meantime in community of Property, with spouse nr. 2 then the immovable property which was formally an asset
of the joint estate of his first marriage, can only be sold if all three parties sign the Offer to Purchase and transfer documents
DIVORCEES WHO WERE MARRIED OUT OF COMMUNITY PROPERTY
- The same principals as above would apply however, no endorsement is done but a normal transfer in terms of which the property is described as “one half share in and to”. Therefor, if the property was registered in both names, both will need to sign the Offer to Purchase and the transfer documents unless we first transfer the one spouse’s share to the other spouse in terms of the divorce order in which case only the one spouse will sign the Offer to Purchase and transfer documents and the ex-spouse will only sign the transfer documents for the transfer of the one half share.
PARTIES MARRIED IN TERMS OF CUSTOMARY MARRIAGES
- I.t.o the Recognition of Customary marriages Act of 1998, a customary marriage
15 November 2000 (date of commencement of the act) is automatically regarded as in community of property
- I.t.o the Gumede v Pres. Of Rep of SA case the court found that sections of the aforesaid act that said that the act is not applicable to marriages before 15 November 2000 is unconstitutional and
regarded as being in community of property.