The fact that South Africa recognises so many different kinds of marriage is a tribute to an inclusive Constitution, but it can create some confusion when it comes to property sales.
“However, one spouse actually does not need the consent of the other to award a mandate to an estate agent, even if the property forms part of a joint estate,” said Gerhard Kotzé, from RealNet.
He said this is just another twist in the complex legal framework that governs the sale and purchase of residential property in South Africa and that makes it imperative for home buyers and sellers to deal only with qualified and experienced estate agents.
“In SA we respect marriages concluded in terms of civil or customary laws and in terms of many specific cultures and religions, but no matter what type of ceremony took place, the majority are in fact governed by the Matrimonial Property Act of 1984 when it comes to the couple’s assets.”
READ: Understanding your rights to common property
Kotzé said this legislation provides that couples who have not signed an antenuptial contract are by default married in community of property.
“Couples married in this way also have equal power to administer and dispose of their assets and can act independently of each other, except when it comes to the sale of fixed property and the signing of suretyships and credit agreements.”
If a deal falls through because the second spouse actually refuses to sign the sale agreement, the buyer could lose out on interest that could have been earned on a deposit, or on the purchase of another suitable property where the sellers were not at odds.
“A professional agent will however be aware of the potential pitfalls, especially in situations where there seems to be any disagreement between couples about selling their property.”
• Information supplied by Private Property.
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