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Spousal consent

26 March 2009

Essentially, there are three types of marriages in South Africa: in community of property; out of community of property without the application of the accrual system; and out of community of property with the application of the accrual system.

By default, marriages are in community of property. Such marriages create a joint estate in terms of which spousal consent is required when dealing with immovable property. Spouses are, however, free to enter into an antenuptial contract to vary the legal consequences of their marriage.

Antenuptial contracts, by their very nature, must be entered into before the marriage is celebrated. Typically, where an antenuptial contract has been entered into, there is complete separation between the estates of the spouses, and no consent is required.

In circumstances where the accrual system is included in an antenuptial contract, the spouses usually have separate estates and do not require consent when dealing with immovable property they own individually. When the marriage dissolves the spouses estate which shows no growth or lesser growth acquires a claim against the other spouse for half of the difference between what has accrued to the two estates.

A foreign marriage means a marriage which is governed by the laws of another country and which is not subject to the laws relevant to South African marriages. A marriage is governed by the laws of the country of the husband's domicile. Domicile is acquired by a person when he is lawfully present at a particular place and has the intention to settle there indefinitely.

It is a requirement in all transactions where property is transferred by a seller whose marriage is governed by foreign law that the written consent of both spouses is obtained unless it can be proved that the laws of that country do not require this.

The mere fact that someone produces a marriage certificate from a particular country does not necessarily mean that the laws of that country govern the marriage. It has to be ascertained whether the husband was domiciled in that country at the time of entering into the marriage.

Consider the following example: Mr A ordinarily resides in England and married his wife while on holiday in Paris. Mr A visited South Africa a few years ago and purchased a holiday home in Constantia. Mr A now wishes to sell his Constantia holiday home and purchase property in a golf resort instead.

As Mr A is domiciled in England, the laws of England govern his marriage despite the fact that he has a French marriage certificate. Therefore, when selling his holiday home, Mr A will have to obtain his wife's consent.

A religious marriage is a marriage celebrated in accordance with a particular religion. Generally, these marriages have no impact on a person's contractual capacity.

As a result of the Recognition of Customary Marriages Act 120 of 1998, customary marriages are valid provided they are concluded in accordance with customary law. "Customary law" is defined as the customs and usages traditionally observed among indigenous African peoples: Customary marriages concluded after November 2000 are in community of property unless an antenuptial contract is concluded.

The Civil Union Act came into operation on 30 November 2006. The Act aims to regulate the solemnisation and registration of civil unions by way of either a marriage or a civil partnership.

The pivotal Constitutional Court decision of Minister of Home Affairs v Fourie 2006(3) BCLR 355 (CC) held that the Marriage Act discriminates against same-sex couples in that they are not given the opportunity to enjoy the benefits and responsibilities of a marriage as opposite-sex couples are. The court ordered parliament to enact legislation within a certain period to remedy this.

The Act defines 'civil union" as a union between two persons who are both 18 years of age or older, which is solemnised and registered either by way of a marriage or a civil partnership. A "civil union partner" means a spouse in a marriage or a partner in a civil union concluded in terms of the Act. Both same and opposite sex couples can therefore either conclude a marriage or a civil partnership.

It makes no difference whether a marriage or a civil partnership is concluded because the same legal consequences apply to both. In terms of the Act, the same legal consequences of a marriage contemplated in the Marriage Act apply to a civil union. Any reference to marriage, husband, wife or spouse in any law includes a civil union and a civil union partner respectively.

A tension has been created in that both the Marriage and the Civil Union Acts govern marriages and civil partnerships. If no antenuptial contract is entered into, the marriage or civil partnership will be in community of property.

It is unclear what law will apply to a civil union between parties of the same sex where one of the parties is domiciled in a foreign country. Essentially, who will be regarded as the husband, who as the wife? This, together with other anomalies created by the Act, will have to be addressed by the legislature in due course.

It may be advisable for civil union partners to conclude antenuptial contracts wherein they should record which partner will be regarded as the husband for the purposes of the marriage.

In conclusion, where spouses in a marriage in community of property or a foreign marriage intend dealing with immovable property, the written consent of both spouses must be obtained.

My advice to Mr A in the earlier example is that if he intends proceeding with the sale of his holiday home, he persuades his wife of the appeal in purchasing property in a golf resort. Without his wife consenting to the sale and signing all the relevant transfer documents Mr A's hands are tied.

Republished with permission from SA Deeds Journal



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