Matrimonial property law passed

Married couples can now decide to vary their property regime to in or out of community (and vice versa). The old Married Persons Property Act of 1971 was inflexible and gave too short a period for the validation of property regimes.

It was amended last year. The old Act presupposed that couples married under Common Law were married out of community of property, unless they signed an instrument registering to be married in community of property before the solemnisation of their marriage. Under the old Act, the form needed to arrive before the Registrar of Deeds within 90 days. The Act was also silent on whose responsibility it was to submit the forms to the Registrar of Deeds,

The new Act provides for the Registrar of Marriage to submit the forms registering the property regime with the Registrar of Deeds within 180 days, an extension from the previous 90 days. It also allows for the Registrar of Marriages or the spouses to apply to the High Court for an order directing the Registrar of Deeds on an instrument such as a marriage certificate where an error is discovered after registration.

It will cover all marriages, even those married under the old Act. It also provides for the validation of property regimes that were found to be invalid under the old Act. Section 8 of the new Act provides for couples married under Common Law, to change their property, loss and profit regime from one type to another (either in community or out of) up to a maximum of two times. It allows the same for married couples subject to Customary law who have exempted their property from being administered under Customary law.

Explaining the change, lawyer Uyapo Ndadi said married couples can now decide to vary their property regime to in or out (and vice versa) at least twice in their lifetime. He said the law is welcome because sometimes the property regime may be unsuitable as circumstances change.

“Sometimes a spouse can drag the other spouse into debts on account of irresponsibility, so a spouse faced with that reality or prospect may get redress from court,” he said. The lawyer however stated that the law does not come to the aid of those running away from creditors as they (creditors) are entitled to oppose the application. After getting the court order, the parties must file a Notarial Deed with the Registrar of Deeds for the change in property regime to be valid. He explained that the process is expensive considering that one has to publish their intention in the Government Gazette and a local newspaper three times, draft court application, appear in court and file a Notarial Deed with the Registrar of Deeds.

In response, director of Women’s Shelter Lorato Moalosi-Sakufiwa said the law will be able to deal with the current challenges, some of which threaten the very existence and stability of marriages.

She said that even though some people enter marriages in good faith, the other spouse may be in it for the wrong reasons such as to benefit from the other’s assets. “Sometimes you marry someone who had nothing and later on fight to get half of your properties, which is quite unpleasant,” she said. In working with vulnerable and abused women, Sakufiwa said a lot of them have become victims of such circumstances.

“The bottom line is that people should be in functional marriages,” she said. Commenting on marriage out of community, she said it can work since the couple is property-independent. “It means they can do things together but separately,” she said.