Posted 10 November 2021

Jodie van Broekhuizen

Estate agents, conveyancing secretaries, conveyancers and the public at large are often oblivious to the fact that an Agreement of Sale (and subsequent transfer), as well as mortgage bonds, may be invalid and unenforceable due to non-compliance with Section 17(6) of the Deeds Registries Act, Act 47 of 1937.

“17(6) A person married in terms of a marriage the legal consequences of which are governed by the laws of any other country, shall be assisted by his or her spouse in executing any deed or other document required or permitted to be registered in any deeds registry or required or permitted to be produced in connection with such deed or document, unless the assistance of the spouse is in terms of this Act or on other grounds deemed by the registrar to be unnecessary“.

In laymen’s terms, a husband or wife transferring or otherwise alienating his or her property, must be duly assisted by his or her spouse. 

Lex loci celebrationis principle applies. The law of the country where the marriage was solemnized must be considered to determine the validity and legal consequences thereof. Unfortunately, the laws of that country does not always govern the legal consequences of the said marriage.

It is a well-established legal position that the domicilium of the husband, at time of the marriage, determines the marital property regime. But, does the legal consequences constitute a marriage similar to a marriage out of community of property or in community of property?

The question of where the husband was domiciled at time of marriage was considered in the matter Lydia Mphoko Hillard v Julian Alexander Hillard heard in the Hight Court of South Africa (Orange Free State Provincial Division), in 2007.

The parties were married in Lesotho by ante nuptial contract but subsequently divorced. Lydia instituted action against Julian and claims, amongst other, relief that the accrual system in terms of Section 2 of the Matrimonial Property Act, Act 88/84 applies to the marriage (their ANC does not exclude the accrual).

Julian worked across border in Maseru, Lesotho, but owned a property in Ladybrand, South Africa where he stayed on weekends. He later moved to a flat in Maseru, subsequently moved in with Lydia in Lesotho, obtained a residence permit for Lesotho and celebrated his marriage in Maseru, Lesotho.

Julian pleaded that at the time of the marriage both parties were domiciled in Maseru, Lesotho and therefore the marriage is out of community of property and out of community of profit and loss according to the laws applicable in Lesotho which, incidentally, do not provide for an accrual system. If Julian`s domicilium was in fact in South Africa the accrual system would find application.

The court took measure of the elements of “domicilium” which is important for our topic and question, “to be assisted or not to be assisted …….”

  • Domicile of choice requires:
  1. A physical element i.e. there must be a lawful and physical presence;
  2. a mental element, i.e. the intention to be there for an indefinite period; and
  3. freedom of choice.

This is, obviously, a very subjective test and there is an obligation on estate agents and / or conveyancers to ascertain not only where the husband was domiciled but also his intentions, etc. etc. before signing of, inter alia, Agreements of Sale, and bond documents. Various factors should be considered and not only physical presence over extended periods.

The question also begs; whom will be held liable if transfer of property is registered without the consent of the other spouse, having a vested and real right interest in the property?

It is therefore advisable for a husband or wife, whose marriage is governed by the laws of a foreign country, to always be duly assisted by his / her spouse as far as needs be. Assistance will be in the form of co-signing the relevant documents.

And for those wondering, the court found that Julian was indeed domiciled in the Republic of South Africa at time of marriage and not in Lesotho, despite him having a Lesotho residence permit, having had a business there, and having got married there and stayed there during the week……….