08 Maritial Regimes Article

Keeping Marital Regimes In Mind When Signing An Offer To Purchase

Marriages

There are various marital regimes to consider, such as:

Marriage in Community of Property

If the seller or purchaser is a couple married in community of property, then both spouses will need to sign the Offer to Purchase.  They will need to sign in each other’s presence.  The reason for them both signing the Offer to Purchase is because they have a joint estate.  A property being sold or purchased is an asset which falls part of their joint estate.  The property will be registered in both their names.

Marriage out of Community of Property (WITH OR WITHOUT ACCRUAL)

If the seller or purchaser is a couple married out of community of property, then only the spouse in whose name the property is registered (seller) or the person in whose name the property is to be registered (purchaser) will need to sign the Offer to Purchase.  The other spouse does not have to sign the Offer to Purchase or be present upon signing, unless they specifically want the property to be registered in both their names in the event of them being a purchaser.  The reason for only the one spouse signing the Offer to Purchase is because they have separate estates.

Customary law (traditional) marriages 

Married before 15 November 2000 – deemed to be married out of community of property.

Married after 15 November 2000 – deemed to be married in community of property, unless they registered an Antenuptial Contract, which if they did, they will be married out of community of property.

If the couple is the seller, then check whether the property is registered in both spouse’s names, then both spouses need to sign the Offer to Purchase.

If the couple is the purchaser, you will need to ask them the following:

  • 1. Get their marriage certificate – this will prove whether their marriage has been registered in South Africa. If their marriage has been registered, then they will be considered as a couple married in community of property and both parties need to sign the Offer to Purchase.
  • 2. After point 1 above, then ask them if they signed and registered an Antenuptial Contract. If they did, then they will be a couple married out of community of property, and only one of the spouses need to sign the Offer to Purchase, unless they specifically want the property to be registered in both their names.
  • 3. If they don’t have a marriage certificate and their marriage was not registered in South Africa, then only one of the spouses need to sign the Offer to Purchase, unless they specifically want the property to be registered in both their names.

Civil Unions

Civil Unions are recognized in South Africa. If the couple is the sellers, then check whether the property is registered in both partner’s names, then both partners need to sign the Offer to Purchase.

If the couple is the purchasers, you will need to ask them the following:

  • 1. Ask the couple whether they signed and registered an Antenuptial Contract. If they did, then only one of the spouses need to sign the Offer to Purchase, unless they specifically want the property to be registered in both their names.
  • 2. If not, then both parties will need to sign the Offer to Purchase.

Other Foreign Marriages

If the couple married in a foreign country, then South African law regards them as married in community of property and both spouses need to sign the Offer to Purchase.

Unmarried couples

If the couple is the sellers, then check whether the property is registered in both partner’s names, then both partners will need to sign the Offer to Purchase.

If the couple is the purchasers, you will need to ask them whether they want the property to be registered in both partners’ names.

Muslim or Hindu Rites Marriages

If the couple is the sellers, then check whether the property is registered in both spouse’s names, then both spouses need to sign the Offer to Purchase.

If the couple is the purchasers, you will need to ask them the following:

  • 1. Get their marriage certificate – this will prove whether their marriage has been registered in South Africa. If their marriage has been registered, then they will be considered as a couple married in community of property and both parties need to sign the Offer to Purchase.
  • 2. After point 1 above, then ask them if they signed and registered an Antenuptial Contract. If they did, then they will be a couple married out of community of property, and only one of the spouses need to sign the Offer to Purchase, unless they specifically want the property to be registered in both their names.
  • 3. If they don’t have a marriage certificate and their marriage was not registered in South Africa, then only one of the spouses need to sign the Offer to Purchase, unless they specifically want the property to be registered in both their names.

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