It is established Deeds Office practice to request a supporting affidavit where the title of the land is registered in the name of one spouse, and the accompanying marriage certificate does not disclose the type of marital regime governing the parties' marriage. This often occurs where the surviving party is inheriting from the estate of the deceased by virtue of the marriage in community of property.
The matrimonial regime will also determine whether any benefit in favour of the surviving spouse should be created notarially or in the power of the attorney. It is therefore imperative for the examiners to request an affidavit from the surviving spouse to establish whether the marriage is in community or out of community of property.
Often the affidavit only contains one sentence reading: I hereby make oath that I was married to the late Prameter Poppies in community of property on the 5th May 1999.
The abovementioned information, with the exception of the type of marital regime, can be gathered from the abridged marriage certificate. Whereas it is critical to mention the matrimonial regime, it is further important to mention in the affidavit that at the date of death:
- The survivor was still married to the deceased in community of property
- The parties (the surviving spouse and the deceased) did not conclude the matrimonial property change agreement in terms of Section 21 of the Matrimonial Property Act 88 of 1984 during the deceased's lifetime.
Republished with permission from SA Deeds Journal