The way a couple gets married or the type of marriage contract entered into will impact property ownership in the future.
There are three types of marriage contracts, says Steward, and many couples enter into marriage unaware of how the regime chosen might affect their assets down the line.
This is according to Lanice Steward, managing director of Knight Frank Anne Porter, who says as this type of investment is often the biggest asset likely to be bought together, it is best to discuss these matters beforehand.
There are three types of marriage contracts, says Steward, and many couples enter into marriage unaware of how the regime chosen might affect their assets down the line.
Under normal circumstances, she says you either get married in community of property or out of community of property, and with or without the accrual system.
Out of community of property no consent of the spouse is required to acquire or dispense of an asset.
However, if you’re married in community of property, you need both parties’ consent for any property transaction. Although the offer to purchase may only reflect the signature of the registered owner, the consent must be given by the spouse after the signature of the agreement. For in community of property both parties’ consent will be needed to sell it.
In the event of a divorce, in community of property and out of community of property with or without accrual, if one of the spouses wishes to purchase a property, the offer to purchase can be signed prior to the registered divorce but transfer must not take place otherwise the property would be considered part of the marriage assets.
In the case of a religious marriage (i.e. Hindu or Muslim), no consent is needed from the spouse to buy or sell because the Matrimonial Property Act does not apply here.
In the case of a customary marriage (only since 15 November 2000 has it become a civil marriage), the wife has the full legal capacity to contract. In polygamous marriages entered into before 15 November 2000, both parties have to sign the documents.
On the death of a spouse, if you are married in community of property you will need the consent of the executor to transact and if you are married out of accrual, you would need the executor’s permission if the property was bequeathed to you but not transferred into your name.
One thing to remember, says Steward, on the death of a spouse, there will be no transfer duty to transfer the property into your name, so make sure that this is done.
In the case of a divorce, before a property can be transferred, the attorneys will have to check the divorce order and title deeds to make sure that it is registered in the name of the person trying to sell the property.
“Many decisions have to be made when getting married, but the type of contract is possibly the most important and is often the one that everyone avoids. Consider all your planning carefully and you won’t get caught out later by something you haven’t discussed,” says Steward.
Print
