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Conundrum reply

17 April 2008

From Sara Scheiner

Regarding Donald Moore's A conundrum.

I would have drawn the transfer documents differently.

In terms of the Deeds Registries Act, a conveyancer may give a certificate as proof of certain facts.

So what I would have done is draft the documents with A as the transferor, describing him as "divorced" and giving the Deeds Office a conveyancer's certificate to the effect that, in terms of the Divorce Order, the spouse has no interest in the property.

I have done it like this in a similar situation where the marriage was governed by the law of Belgium (also in community and the property had been awarded to one spouse).


And from Mark Schäfer

The Assistant Registrar's decision is partly correct. Section 45 bis relates to a joint estate as per South African law - i.e., a marriage in community of property. Foreign marriages are exactly that and even though they may have the same or similar consequences as a marriage in or out of community according to South African law, we continue to treat them as foreign marriages. The Registrar requires the consent of a spouse in a foreign marriage when the property is disposed of - obviously to protect himself and the spouse. Here a South African court has terminated the marriage and awarded the property to a spouse. It is respectfully submitted that the consent of the "dispossesed" spouse should not be required.

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