estate agents attention drawn to new marriage law
19 January 2007
Estate agents are being urged to familiarise themselves with the property-related aspects of the Civil Unions Act that came into effect last month by Dr Willie Marais, president of the Institute of Estate Agents of South Africa (IEASA).
Commenting on the Act in an IEASA January 17 media release, Marais says that although same-sex marriages received the greatest public attention, the Act also puts domestic partnerships on a statutory basis, and contains some provisions relating to property.
"The Act adds two new forms of civil union to South Africa's system of marriages," says Marais.
"One is the 'civil partnership', which is the same-sex marriage. The other is the 'registered domestic partnership', which can be male/female or same-sex. As estate agents well know, when a couple wants to sell, buy, let or rent a property, it's important to know what marriage or partnership system they're under, and who must sign the mandate and contract. An incorrectly signed document can cause legal and financial problems, and even be invalidated."
The Act provides that the term "marriage" in all laws (except for the Marriage Act itself) and in the common law must now be interpreted to include a same-sex civil partnership.
As far as property is concerned, says Marais, this implies that a civil partnership would fall under the Matrimonial Property Act, and that the partners have the choice between marrying in community of property or by ante-nuptial contract out of community of property.
Like a marriage and a civil partnership, a registered domestic partnership must be registered at the Department of Home Affairs. By default it is out of community of property, but the partners can enter into a written agreement to make it in community, i.e. the reverse of a marriage or civil partnership property regime. If they own a property jointly, then neither may sell, donate, mortgage, let, lease, or otherwise dispose of it without the other partner's consent.