Foreign marriages: knowing your marital status when married in another country, with regard to conveyancing and estate planning

Marriages and civil unions in South Africa are governed by different marital property regimes which directly impact property ownership. These are either in or out of community of property. In South Africa, when executing an antenuptial agreement, or prenuptial agreement as termed in other countries (also known as a prenupt or prenup) the marriage is out of community of property.

 

When a couple marries under foreign laws, certain considerations should be noted.

 

An article by Dudley Lee in the South African Deeds Journal explains the regime governing foreign marriages. For practical reasons, marriages governed by the laws of another country are out of community of property, with the retention of the marital power for Deeds Office and conveyancing purposes.

 

When a spouse in a foreign marriage owns immovable property, ideally both spouses should enter into the transaction together, or one spouse should assist the other.

With regard to land ownership, the effects of foreign marital property regimes becomes particularly relevant in estate planning, will drafting and on death or divorce.

 

When a spouse dies, or when the couple divorce, and the property is to be transferred, the Deeds Office must be satisfied that the transfer complies with the relevant legal provisions. In divorce cases, this is relatively simple to satisfy.

 

It is more complex when a spouse dies, as t. thehe transfer must comply with the Liquidation and Distribution account, filed with the Master of the High Court. The will account must lay open for inspection, as prescribed by the Administration of Estates Act 66 of 1965. Ensuring compliance with this condition is now included in section 42(1) of the Administration of Estates Act, arising from Ex Parte Amm’s Executors 1921 TPD 273.

 

In Ex Parte Broodryk 1944 TPD 57, “It was contended that the Registrar of Deeds had no authority to question the liquidation account confirmed by the Master. But under regulation 50, published in terms of Act 47 of 1937, it is provided that where land is to be transferred in pursuance of the terms of a will the Registrar may require a copy of the liquidation account to be lodged in addition to other documents…”

 

For foreign couples, being married in community of property helps to speed up property transfers, is more cost-effective, and ensures that the couple benefits from section 45 of the Deeds Registries Act 47/1937 endorsement process versus a  complete transfer. According to Registrars Conference Resolution (RCR) 1/2003 the couple must lodge proof of community of property. In 2004 another resolution, RCR 5/2004, was issued to clarify the form of proof required. The resolution states: “Proof from the foreign mission of the relevant country or an opinion from an expert will be required”.

 

In most foreign countries, marriages solemnised in South Africa will be recognised when an unabridged marriage certificate and duly authenticated registered antenuptial contract is submitted to the relevant country’s consular authority.

 

If a document is to be used outside South Africa, it must be authenticated as prescribed in rule 63 of the High Court rules, as amended by Government Notices R 500 dated 12 March 1982 and R 801 dated 23 April 1982; and the Hague Convention of 5 October 1961.

 

In addition, a marriage certificate is not necessarily proof of the laws or country governing the marriage. For example, in South Africa the marriage is governed by the laws of the country where the husband is domiciled at the time of the marriage. However, we are of the opinion that the presence of an antenuptial contract is prima facie proof of the provisions or country’s laws regulating a marriage.

 

In some instances, properly authenticated antenuptial or similar contracts may be sufficient for Deeds Office purposes, aiding in proper estate planning and simplifying the estate’s administration.

 

We offer a specialist notarial service to authenticate documents. We are conveyancers and experts in drafting wills and estate planning.

 

If you are a couple living in a foreign country, we strongly advise to speak to a specialist attorney and to act pro-actively in having your marriage legally recognised in that country.

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