A and B were married in California where the default matrimonial proprietary regime is in community of property and A, the husband, was domiciled in California at the time of the marriage.
A and B are now permanently resident in South Africa and A owns a property in South Africa which was purchased after the marriage so is registered in his name with his marital status disclosed as "married which marriage is governed by the laws of California United States of America".
A and B get divorced in South Africa and in terms of the Settlement Agreement, that is made an Order of Court, it is recorded that in terms of the laws of California the marriage is in community of property and that the property registered in A's name is awarded to A.
Is it open now for a Section 45 bis Application to be registered considering that the marital property regime is not in community of property in terms of South African Law?
If a Section 45 bis Application is not the correct procedure to follow then how is the property to be transferred by A to a purchaser several years after the divorce? Would it be sufficient to lodge the Divorce Order in terms of which the property is awarded to A or would it be necessary for B to be joined effectively to give the assistance that would have been required had the parties been still married?
In a recent matter involving the above facts the following occurred:
Reader's comments on this situation would be interesting. It may be desirable that the scenario sketched here should be the subject of a Registrar's conference ruling.
Guthrie & Rushton Attorneys