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Thinking of tying the knot? This is how marriage contracts affect home ownership

By Vernon Pillay Time of article published Oct 12, 2021

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There are several marital systems recognised by the South African Deeds Office, each of which will influence the property transactions in different ways. Understanding this can help homeowners make good investment decisions upfront.

“Buying a home as a married couple can be an exciting step in the couple’s life together. However, it is important to adopt a long-term view on any real estate investment. I would therefore encourage all married couples to understand how their marriage contract will affect them in relation to owning a home together,” says Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa.

Below, Goslett, explains each option for registering a home at the Deeds Office.

In Community of Property

This marriage contract is the epitome of what’s yours is mine and what’s mine is yours. In these instances, any home purchased between the couple will be jointly registered in the name of both spouses. This also means that if you owned property before becoming married, the property will automatically form part of the joint estate after you are married. This means that you cannot sell the home without first obtaining the consent of your spouse, as he/she will now own that home jointly with yourself. A possible exception is if you inherited a property subject to a condition that stipulated that the inherited property is excluded from any future joint estates.

Out of Community of Property

Also referred to as an Ante Nuptial Contract (ANC), these contracts typically exist to protect any assets going into a marriage. In these instances, you are free to own and purchase property in your own name without the consent of your spouse. However, you are also able to purchase a property jointly if this is what you wish to do. These contracts will differ depending on whether the ANC includes or excludes the accrual system. In an ANC without accrual, the two estates remain separate during the marriage. But, an ANC with accrual means that while the two estates prior to marriage are separated, after the date of marriage the two estates become joined and any property may then form part of the accrual unless it is expressly excluded within the ANC. If the marriage dissolves or there is a death of a spouse, then the items accrued during the marriage (unless expressly excluded in the ANC) are split fairly between the individuals.

According to Customary Law or Muslim rites

Unless an Ante Nuptial Contract is in place, any customary marriage concluded after The Recognition of Customary Marriages Act 120 of 1998 came into effect on 15 November 2000 is deemed to be in community of property and will follow the same conditions as explained above. Those who were married before this Act came into effect are able to own property separately from their spouse or they may purchase property together as co-owners if this is what they prefer. Pre-2000 Customary Law and Muslim Rites marriages are similar. But, those married after 2000 under Muslim Rites would enjoy similar benefits of a marriage Out of Community of Property, whereas post-2000 Customary Law marriages are more similar to being married in Community of Property.

According the laws of a foreign country

When a couple is married under the laws of any country outside of South Africa, then the they are able to own property separately from their spouse and can have the property registered in their own names. They may also choose to purchase property together as co-owners if this is what they prefer. The only snag is when the property is sold, whoever is the registered owner of the property will need to be duly assisted by their spouse to conclude the transfer.

“No matter how your marriage is structured, owning property either jointly or separately will help ensure greater financial security for the household. Those who wish to learn more about the topic should reach out to an attorney. To find out what real estate investments are available to them, I would also encourage married couples to get in touch with their nearest agent to see what homes are available within their price range,” Goslett concludes.

PERSONAL FINANCE

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