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When registering immovable property and mortgage bonds, a Conveyancer must carefully consider the seller's, purchaser's, or mortgagor's marital status and the applicable matrimonial regime. These factors – particularly whether a marriage is governed by South African law or foreign law – play a pivotal role in the drafting, signature, and registration of all conveyancing documents.
Below are key points to bear in mind when selling or purchasing immovable property, or when passing a mortgage bond:
Unmarried or Married Out of Community of Property
- If a seller is an unmarried major or is married out of community of property (whether the accrual system applies or not) and is selling in their personal capacity, only that seller signs the Power of Attorney to Pass Transfer. Where the seller is married out of community of property, they sign without the other spouse.
- Similarly, if the purchaser is unmarried or married out of community of property, the immovable property is registered in the name of the unmarried purchaser or the spouse married out of community of property.
- The same principle applies to mortgage bonds: the mortgage bond documents are signed by, and registered against the immovable property of, the unmarried mortgagor or the mortgagor married out of community of property—again, without assistance from the other spouse.
Married in Community of Property
- Where sellers, purchasers, or mortgagors are married to each other in community of property, both spouses must act jointly and sign the relevant documents. Any immovable property purchased will be registered in the joint estate of the spouses.
- An exception arises if the immovable property is explicitly excluded from the community of property (for instance, property inherited under a Will that excludes the community). In such cases, the spouse who owns the property may act without assistance from the other spouse.
- For mortgage bonds, if spouses are married in community of property, both spouses must pass and register the bond over the immovable property.
Married, with the marriage being governed by the laws of a foreign country
- If the seller owns 100% of the immovable property and is married, with such marriage being governed by foreign laws (i.e., the laws of another country), that seller must be assisted by their spouse when disposing of the property. This requirement is in line with section 17 of the Deeds Registries Act 47 of 1937.
- By contrast, if a purchaser's marriage is governed by foreign laws, their spouse needs to only be cited in the transfer documents (not necessarily physically sign them), unless both spouses are purchasing the property together.
- The same principles apply when registering a mortgage bond in the name/s of mortgagors whose marriage is governed by foreign laws.
Special Powers of Attorney
Where parties cannot personally sign transfer or mortgage bond documents, a Conveyancer may draft a Special Power of Attorney (specific to a particular property transaction) or a General Power of Attorney (granting broader powers).
This allows the seller, purchaser, or mortgagor to authorise a third party to sign the necessary documents on their behalf. The immovable property and mortgage bond will still be registered according to the relevant rules discussed above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
