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A rose by any name

25 January 2007

A woman who marries can choose to retain her maiden name, assume her husband's surname or change her surname to a double-barrel surname (now very popular among politicians). Similarly, following a divorce, a woman may even revert to her maiden surname, retain her married name or change her double-barrel surname.

From a deeds registration perspective, the aforementioned constitutes a fixed practice that must be applied uniformly. Each of the above scenarios will now be perused more closely.

Retention of maiden name
Should a spouse retain her maiden surname and a deed or document is now being lodged for registration, only reference to the maiden surname must be made, for example:

Avril Lavigne
Identity number 630313 0003 089
and
Peter Mackowitch
Identity number 650919 5094 089
married in community of property to one another


In terms of Section 15A, read in conjunction with Regulation 44A of the Deeds Registries Act 47 of 1937, the preparer assumes responsibility for the correctness of the names, etc. The preparer must thus obtain an affidavit or some other proof from the party concerned that she retained her maiden surname and that she will only utilize this name. Should such a spouse at a later stage decide to assume her husband's surname, the provisions of Section 93 of the Deeds Registries Act must be adhered to.

Assumption of husband's name
Should a spouse assume her husband's surname, reference must be made in the deed or document to her maiden surname so that the registrar of deeds may ascertain the nexus between the two parties, for example:

Avril Mackowitch (born Lavigne)
Identity number 630313 0003 089
and
Peter Mackowitch
Identity number 650919 5094 089
married in community of property


The provision of Section 93 is not obligatory in this instance and the party concerned is not obliged to record the assumption of the surname against any registered deed. It is, however optional.

Assumption of double-barrel surname
Should a woman assume a double-barrel surname, as provided for in Section 26(1)(c) of Act 51 of 1992, the provisions of Section 93(1) must be insisted upon before such a woman can deal with any property registered in her name in a deeds registry (see RCR 20 of 2005). By way of example:

Avril Lavigne-Mackowitch
Identity number 630313 0003 089
and
Peter Mackowitch
Identity number 650919 5094 089
married in community of property


Where the property was registered in the name of Avril Lavigne, an application in terms of Section 93(1) must be effected before or simultaneously with the transaction to be registered. It has been proposed that Section 93(1)(c) be amended to include double-barrel surnames, but until such time as the Act is amended, the provisions of Section 93 are peremptory.

Reversion to maiden name
Where, after divorce or death, a woman decides to revert to her maiden surname, such a woman shall not be obliged to record such a resumption of surname against any registered deed or other document to enable her to deal with the property held by her under such deed or document (Section 93(1)(c)).

In practice the woman is described as:
Avril Lavigne
Identity number 630313 0003 089
unmarried


No reference to her married surname is made; however, proof must be submitted that she reverted to her maiden name, in the form of an affidavit or otherwise.

Retention of married surname
Following divorce or the death of her husband, a woman can retain her married surname, and no act of registration is obligatory with regard to the change of status. Section 17(4) of the Deeds Registries Act 47 of 1937 can be invoked, should a spouse require to update her title to reflect her new status. However, this is not obligatory.

Change of double-barrel surname
Where, following a divorce or the death of a spouse, a woman elects to change her surname from a double-barrel surname back to her maiden name, the provisions of Section 93(1) must be invoked before or simultaneously with the transaction about to be registered.

The above practice should be applied uniformly to prevent deeds being rejected

Allen West

Republished with permission from SA Deeds Journal

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