The South African law does not attempt to interpret the matrimonial property laws of a foreign country and we deal with all persons married in terms of foreign legislation in a manner similar to persons married in community of property. This means that the spouses must generally assist one another to deal with immovable property, even if the property is not registered in both their names.
The legal and proprietary consequences of a foreign marriage is determined by the laws of the country where the husband was domiciled at conclusion of the marriage. A person’s domicile can be described as that country where the person considers themselves to be settled.
In respect of a property transaction, one must distinguish between the seller’s processes and the purchaser’s.
1. Seller
| Signature of the sale agreement | Signature of the transfer documents |
|---|---|
| The sale agreement is not lodged in the Deeds Office.
If the property is registered only in one spouse’s name, only such spouse must sign the agreement and the assistance of the other spouse is not needed. If the property is registered in both spouses’ names, both must sign the sale agreement. |
These documents are lodged in the deeds office.
Where the property is only registered in the name of one spouse, the other spouse needs to assist, by signing the Power of Attorney to pass transfer. If the property is registered in both spouses’ names, both spouses need to assist each other on the Power of Attorney to pass transfer. |
2. Purchaser
| Financed by cash payment | Financed by mortgage bond |
|---|---|
| Where a property is purchased cash, no assistance is required from the purchaser’s spouse on any of the documents. | Where the purchaser requires bond finance, the purchaser’s spouse will have to assist on the bond documents that are lodged at the deeds office as well as on all the documents that the bank require co-signature on.
The major banks generally only require that a spouse must only assist and co-sign the documents and do not need to be added as a co-applicant, unless it is the parties’ intention to register the property in both spouses’ names. FNB however requires that both spouses must be added as applicants and the property be registered in both their names. |