At Seeff, our job isn’t just about finding the perfect home, it’s about ensuring every transaction is legally sound so that no one buyer or seller has any nasty surprises further along the way and we do our best to prepare both parties for the process ahead of them. By asking the right questions and being meticulous with paper work we can help make buying or selling your home a pleasant experience.
One area that often causes confusion is how South African marriage laws, particularly customary marriages, impact property rights. A landmark Constitutional Court ruling has recently clarified some vital points that every homeowner and prospective buyer needs to understand.
The Default: In Community of Property
In South Africa, the default position for both civil and customary marriages is "in community of property". This means that unless you signed an Antenuptial Contract (ANC) before your ceremony, you and your spouse have equal ownership and joint management of your entire estate, including immovable property.
One Marriage, One Continuous Union
A common misconception is that a couple can "update" their property regime if they have a civil ceremony years after their customary marriage. However, the law is now crystal clear: a customary marriage and a subsequent civil ceremony between the same couple are viewed as a "single, continuous marriage". The civil ceremony merely confirms the existing union; it does not start a new one. This has huge implications for property. If a couple married customarily in 2011 without an ANC, they are married in a community of property. If they later signed an ANC in 2021 just before a civil wedding, that contract is invalid. To change their property regime, they would have needed a court application under Section 21 of the Matrimonial Property Act.
What Sellers Need to Know
If you are married “in community of property” even if you only recently had a civil ceremony, you cannot sell your home alone. Both spouses must generally consent to the sale of immovable property. Without this mutual consent, the entire transaction can be called into question, leading to potential litigation and the collapse of the deal.
What Buyers Need to Know
When you’re buying a home, your "due diligence" shouldn't stop at the structural inspection. You must verify the marital history of the seller. Don’t just look at the current civil marriage certificate; ask if a customary marriage preceded it. This confirms the applicable property regime and ensures that all necessary consents are in place before you sign on the dotted line.
The Bottom Line
The law ensures that customary marriages enjoy the same status and protection as civil marriages. This prevents one spouse from unilaterally changing property arrangements to the detriment of the other.
Whether you are selling or buying, transparency is key. If there is any doubt about a marital regime or the validity of an ANC, I always recommend seeking legal advice before proceeding. Proper investigation today prevents a legal nightmare tomorrow.
