RCR 4 of 1950 provides that, because section 45 is not applicable to a marriage out of community of property and, because the proof of a marriage in community of property is not a requirement in other offices, Bloemfontein Deeds Office should cease from insisting on such proof. Reference is also made to regulation 49 of the Deeds Registries Act 47 of 1937 ("the Act"). Latter regulation also makes no provision that proof should be given of a marriage in community of property.
RCR 25 of 1966 deals with the question of whether proof should be given of a marriage in community of property, in order to qualify for exemption from half of stamp duty. Mention is made that there is no uniformity between the offices. The question arises as to whether this practice is correct, as the debtor is accountable for the full amount should he be married out of community of property. This practice should be inconsistent with regard to a section 45(1) application, where proof of the joint estate is not required. Therefore, RCR 4 of 1950 confirms that no proof is required.
RCR 8 of 1989 deals with the question of whether proof should be given of a marriage in community of property, where
- the surviving spouse has inherited immovable property, subject to a testamentary condition; and
- a usufruct in favour of the surviving spouse has been created in the deed of transfer.
Amendment Act on the Deeds Registry Act of 1966 No 11/1966 (Sections 5 and 6)
In terms of examiners notice, dated 10/9/1966 (Bloemfontein), it is pointed out that in the "old" section 45(1) and bis Act 47 of 1937, the vesting clause determined whether the mentioned sections could find application. Later, the practice was that a section 3(1)(v) endorsement could be affixed to the title to insert the name of the surviving spouse in the title (RCR 13 and 54 of 1994). In such a case, a section 45 application could subsequently be made. Consequently, these amendments had the effect that the vesting clause did not play a role anymore and that the property concerned was only an asset in the joint estate.
Therefore the Bloemfontein Deeds Office requires that proof be given of the marriage in community of property by means of:
- a marriage certificate; and
- an affidavit, in which it is declared that the matrimonial property regime hasn't been amended since conclusion of the marriage (Section 21(1) Act 4/1984)
Section 17(4) of the Act is by no means compulsory. A further consequence is also that bonds can now be finalised in terms of Article 45(2)(c) of the Act, irrespective of who acted as the mortgagor, or not (RCR 18 and 54 of 1994).
The Law Manual (Chapter 4) confirms that, in certain cases, proof should be given of the marriage in community of property, as already mentioned in order to:
- determine whether the whole, or only a share of the property is subject to a testamentary condition, where the testamentary condition exists; and
- ascertain the amount payable in stamps, in case of a bond.
Regulation 44A(d)(i)(aa) provides that the preparer of a deed or document accepts responsibility for "the ... marital status of a natural person ... who is a party in a deed or document."
- Without proof of the marriage in community of property, proof should, indeed, be given of such a marriage - unless it is clearly evident from the title. Documents mentioned in points above are therefore still essential.
- Regulation 49 of the Act, should not be regarded as a complete list of essential documents.
- Regulation 44A covers the present status of the applicant in the application and not the marriage in community of property.
- With regard to the stamp duty on half a share - proof should be required, as it may hold financial implications prejudicial to the state, if the parties were not married in community of property.
- Section 4(1)(a) of the Act also stipulates that each Registrar is competent to exact proof by means of an affidavit, or by any other means, of any fact in connection with any matter that demands execution in his office.