With its scenic landscapes, favourable climate, and competitively priced real estate, South Africa remains a popular choice for foreign investors. As the country’s largest property law and conveyancing firm, STBB regularly handles property transactions involving foreign purchasers and sellers. In defined instances, spouses married in terms of foreign law are required to co-sign all documentation.
Under South African law, a couple’s matrimonial regime has significant proprietary consequences. For instance, spouses married in community of property share a joint estate and are precluded from performing certain juristic acts, such as alienating immovable property, without the consent of the other spouse. Conversely, a party to a marriage out of community of property may typically freely purchase and sell property in their own name. Accordingly, the transacting party’s spouse is not required to sign the sale agreement or any transfer-related documents.
What about sellers and purchasers who are married in accordance with the laws of a foreign jurisdiction?
For practical reasons, conveyancers, financial institutions, and Deeds Registry personnel are not expected to be familiar with the finer details of other countries’ matrimonial laws, which may or may not mandate spouses to assist each other during transactions involving immovable property.
To simplify and unify the requirements for foreign spouses and spouses married according to the laws other countries, section 17(6) of the Deeds Registries Act (‘the Act’) specifies that such spouses must be assisted by their spouse in executing any deed or document which is required to be registered in the Deeds Registry or produced in connection with said deed or document, unless the Registrar of Deeds waives this requirement.
In this context, ‘assistance’ is interpreted to mean that the spouse of the seller or purchaser must consent to the transaction. In practice, consent is obtained when the spouse signs the deed and or document lodged in the Deeds Registry, and any documentation required to give effect to the transaction, such as the agreement of sale, or by furnishing separate consent.
Notably, the transactions governed by section 17(6) of the Act encompass the disposal of immovable property registered in a spouse’s name and the passing of a bond over a property. The provision does not apply to the acquisition of property. The reason for this distinction is attributed to the nature of the transactions, that is the sale of immovable property entails disposing of a major asset and the registering of a bond imposes a burden, both of which produce ‘negative’ consequences for one or both spouses’ estates. Contrastingly, the purchase of property results in the growth of one or both spouse’s assets.
Accordingly, section 17(6) of the Act operates as a precautionary mechanism that ensures both spouses are involved in the alienation of immovable property or the registration of a mortgage bond, irrespective of the legal position in the jurisdiction governing their marriage.
For further information and legal guidance, contact our property lawyers at info@stbb.co.za.
For expert legal assistance in matrimonial matters, contact our Cape Town-based family law attorneys at familylaw@stbb.co.za.
