If you are married or plan on getting married and you wish to purchase a property, have you ever wondered how that property will get registered?
The type of Matrimonial property regime you and your significant other chose to enter, will influence your ownership of a property and how that property will be registered.
Here is a brief outline of the types of Matrimonial Property Regimes recognised by the Deeds Registries in South Africa, in the context of property ownership:
Marriage in Community of Property
This is the default Matrimonial Property Regime in South Africa. If you and you spouse do not enter into an Antenuptial Contract before your marriage, you will automatically be married in community of property. Should you buy property together, once married in community of property, all assets, including that property, as well as all liabilities of both parties will fall into the joint estate on a 50/50 basis. This means the property will be registered jointly in both spouses’ names.
An exception however would be if the property has been bequeathed to you in a will or donated to you subject to a condition in the will or deed of donation respectively that the property is excluded from the joint estate. In this instance, you would be the sole and exclusive registered owner.
If you already own property that you bought while you were unmarried, that property will automatically form part of the joint estate should you subsequently choose to be married in community of property. If you decide to sell the property, your spouse will have to consent to the sale and transfer of the property.
Marriage out of Community of Property by way of an Antenuptial contract, either with or without the application of the accrual system
Should you and your spouse wish to exclude the community of property, you would enter into an Antenuptial contract. If you then decide to buy property, after having entered into an Antenuptial contract, without the application of the accrual system, you would be able to buy that property separately and in your own names, without the consent of your spouse. You may also choose to buy the property together as co-owners.
Where the accrual system is applicable, you and your spouse would, on dissolution of the marriage, share in the growth that accrued to each of your estates during the existence of the marriage. If you buy a property and are married out of community of property, with the accrual system being applicable, the property would form part of the accrual, provided that it is not specifically excluded from that accrual system in the Antenuptial contract. If the property is not excluded from the accrual system, it will be taken into consideration on dissolution of the marriage through death or divorce.
Marriage according to Customary Law
Should you enter a marriage according to customary law, you and your spouse would be able to buy property separately and in your own names. You may also buy the property together as co-owners, provided that your customary marriage was concluded before 15 November 2000. If your customary marriage was entered after this date, and you have not entered into an Antenuptial contract, then the marriage is deemed to be in community of property and the property you buy together will be registered jointly in both spouses’ names.
Marriage according to Muslim rites
Should you enter into a marriage in terms of Muslim rites, and the marriage is solemnized by an Imam who is a marriage officer, the marriage will be in community of property, unless you enter into an Antenuptial contract whereby you exclude the community of property regime with or without the application of the accrual system.
You and your spouse would, in the instance that you conclude an Antenuptial contract before entering into a marriage according to Muslim rites, be able to buy property separately and in your own names. You may also choose to buy the property together as co-owners.
Marriage according to the laws of a foreign country, which include marriages that took place in any other country outside of South Africa
Should you and your spouse enter into a marriage which is governed by foreign laws, you would both be able to buy property separately and in your own names. You may also choose to buy the property together as co-owners. Should the property however be sold or mortgaged, the spouse who is the registered owner of the property will require the assistance of the other spouse.
BKJM Attorneys can assist you with any matter relating to Matrimonial Property Regimes and the purchase a property.
Should you require an Antenuptial Contract, give me a shout and as an Admitted Notary Public, I will be happy to assist.
W: www.bkjmattorneys.co.za
E: khumi@bkjmattorneys.co.za
T: +27 60 628 6294
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