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.  

For example, says Gerhard Kotzé, MD of the RealNet estate agency group, a couple who are married in community of property must both sign all the relevant documents – especially the offer to purchase – to ensure a valid sale.

“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. What is more, the other spouse cannot then award a similar mandate to another agent, or contest the rate of sales commission agreed to in the original mandate.”

He says 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.”

Kotzé says this legislation provides that couples who have not signed an ante-nuptial contract are by default married in community of property, a system in which both spouses have an equal share in any property, belongings and liabilities that they bring into the marriage or acquire during the marriage.

“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.

“And working with an agent who does not understand that both husband and wife married in community of property must sign all documents relating to the sale could lead to significant financial loss.”

If a deal falls through because the second spouse actually refuses to sign the sale agreement, he notes, 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.

“Or even if there is just a delay while the second signature is sought, it might mean that the buyer incurs extra holding costs on his own property or has to pay more rent instead of starting to pay off his new home loan.

“A professional agent will however be aware of the potential pitfalls, especially in situations where there seems to be any disagreement between a couple about selling their property, and is unlikely to have accepted a mandate signed by only one spouse married in community of property in the first place.”

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