A conundrum

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:

  1. The registered owner of the property (A) sold the property subsequent to the divorce, the property having been awarded to him in terms of the Settlement Agreement;
  2. Before preparing any transfer documents an Assistant Registrar was approached to ascertain his view as to whether a Section 45 bis Application was necessary. He expressed the view that no Section 45 bis Application was necessary as the property was awarded to A in terms of a Court Order and was registered in the name of A already;
  3. The transfer was prepared as a normal sale and transfer by A and in support of A being entitled to deal with the property a certified copy of the Court Order and Settlement Agreement was lodged;
  4. The matter was rejected by the Deeds Office with a note calling for a Section 45 bis Application to be lodged;
  5. In discussion with an Assistant Registrar of Deeds the note was changed so that a Section 45 bis Application was no longer required but that A required in effect to be assisted by his ex-wife. The Assistant Registrar of Deeds was not prepared to accept the award of the property in the Settlement Agreement (Court Order).

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


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