Navigating Spousal Approval in Property Sales: A Legal Insight

Despite the presence of various safeguards in property transactions, instances occur where a spouse married in community of property sells immovable property without their partner’s consent or knowledge. The Matrimonial Property Act 88 of 1984, specifically sections 15(2) and 15(3), stipulates that a spouse cannot, without the other’s written consent, alienate or impose any real right on immovable property forming part of the joint estate.

Case law, including Vukeya v Ntshane and Others (2020) and Visser v Hull and Others (2010), highlights the critical question of whether a purchaser could reasonably have known about the seller’s marital status. The courts have recognized the Matrimonial Property Act’s aim to balance the interests of a non-consenting spouse against those of an innocent third-party purchaser.

The responsibility falls on the buyer to investigate the seller’s marital status beyond mere assertions of being unmarried. How could such transactions occur without intervention from the Registrar of Deeds or the Conveyancing Attorney? If the Title Deed and sale agreement both indicate the seller as “unmarried,” and without a requirement for a marriage certificate in the case of community property marriages, the Deeds Office proceeds based on the information provided. Conveyancing attorneys and estate agents typically request a marriage certificate, but reliance is placed on declarations, existing records, and affidavits if a seller falsely declares themselves as unmarried.

The remedy seems straightforward: update incorrect data at the Department of Home Affairs. However, this solution proves elusive. Despite conveyancers’ adherence to checks and balances, exceptions slip through, placing the onus on the purchaser to prove ignorance of the seller’s marital status. This underscores the importance of thorough due diligence by all parties involved in a property transaction to mitigate such risks.

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