There are many marriage systems recognized by bond offices in South Africa, and each will affect property transactions in different ways.
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Understanding this can help homeowners make good investment decisions up front.
“Buying a home as a couple can be an exciting step in a couple’s life together. However, it is important to adopt a long-term vision for any real estate investment.
“So I would encourage all couples to understand how their marriage contract will affect them about owning a home together,” said Adrian Goslet, Regional Director and CEO of RE/MAX South Africa.
Here are the options for registering a home in a bond office.
In the property community
This marriage contract is an example of what is yours and what is mine.
In these cases, any home purchased between spouses will be registered in the spouses’ name together.
This also means that if you owned property before marriage, the property would automatically form part of the joint estate after marriage.
This means that you cannot sell the house without your spouse’s consent first, as he/she will now own this house jointly with yourself.
The possible exception is if you inherit property that is subject to a condition that the inherited property will be excluded from any future joint estate.
outside the property community
Also referred to as a prenuptial contract (ANC), these contracts are usually in place to protect any assets that are entered into a marriage.
In these cases, you have the right to own and buy real estate in your name without your spouse’s consent.
However, you can also buy property jointly if that is what you wish to do.
These contracts will vary depending on whether the ANC includes or excludes the vesting system.
In the ANC without entitlement, the two estates remain separate during marriage.
But, ANC with vesting means that while the two properties are separated before marriage, after the date of marriage, the two properties are joined and any property can then form part of the vesting unless expressly excluded within the ANC.
In the event of the dissolution of a marriage or the death of one of the spouses, the items accumulated during the marriage (unless expressly excluded in the ANC) are equitably divided among the individuals.
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According to customary law or Islamic rituals
Unless there is a prenuptial contract, any customary marriage entered into after the Recognition of Customary Marriage Act 120 of 1998 came into force on 15 November 2000 is considered to be in common property and will follow the same conditions described above.
Those who were married before this law came into effect can own real estate separately from their spouses or can buy real estate together as co-owners if that is their preference.
There is an analogy between customary law and Islamic ritual marriage before 2000.
But, those who married after 2000 under Islamic rituals will enjoy similar benefits to out-of-property marriages, while customary-law marriages after 2000 are more similar to those in a property society.
According to the laws of a foreign country
When spouses marry under the laws of any country outside of South Africa, they can own property separately from the spouse and property can be registered in their own names.
They may also choose to purchase properties together as co-owners if that is their preference.
The only hitch is when the property is sold, whoever is the registered owner of the property will need the necessary assistance from the spouse to complete the transfer.
“No matter how you organize your marriage, owning real estate either jointly or separately will help ensure greater financial security for the family. Those who wish to learn more about this subject should contact a lawyer,” said Gosselet.
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