Foreign marriages – a response

In the third paragraph of Foreign marriages and deeds ("the article"), it is stated that: "When a person whose marriage is governed by the laws of a foreign country dies, it is the duty of the executor to ascertain the actual marital regime of such a person, i.e whether the marriage was in or out of community of property. That is of paramount importance as it will determine how the estate must be administered." To me, this statement provides a positive answer to the question posed in the eighth paragraph of the article, that is, whether the determination of the marital regime of persons whose marriage is governed by foreign law falls within "the view that either the executor or the Master has taken regarding the interpretation of a will or the determination of heirs (see Jones Conveyancing in South Africa 4th edition page 15 and page 268)." I must intimate, however, that I do not consider myself to be more learned than the author of the article.

A determination, that immovable property forms an asset in a joint estate, as contemplated in section 45 (1) of the Deeds Registries Act, 1937 (Act No. 47 of 1937), as amended, ("the DRA"), is not possible, in the absence of proof that the surviving spouse was married in community of property to the deceased spouse. Actually, a determination that "the surviving spouse has lawfully acquired the share of the deceased spouse in the property" relates to "the determination of the heirs and the manner in which the assets devolve and not to other matters" - refer to the eighth paragraph of the article.

Regulation 49 (1) of the DRA sets out a list of the documents that must be produced, in addition to the title deeds et cetera, where application is made under the provisions of section 45 of the DRA. In particular, there is no requirement for the production of proof that immovable property forms an asset in a joint estate of a deceased person and his/her surviving spouse. On this basis, I am unable to find justification for the requirement to lodge the proof stipulated in RCR 5/2004, which requirement discriminates against marriages in community of property, governed by foreign law, also. I hasten to clarify that, in my opinion, unless required by a Registrar of Deeds under section 4 (1) (a) of the DRA, such proof is only relevant, if not essential, to the administration of a deceased estate under the Administration of Estates Act, 1965 (Act No. 66 of 1965), as amended.

I now address the complaint, contained in the last two paragraphs of the article, about the hardships et cetera ("the hardships") inherent in the application of RCR 5/2004. In my opinion, the hardships can only arise in the possible and unfortunate event that the administration of the deceased estate in question was not based on any document at all, let alone any of the documents referred to in RCR 5/2004. This is hazardous and undesirable.

In conclusion, but subject to the afore-going, I would recommend that RCR 5/2004 be withdrawn and replaced by a resolution with the words: "Subject to section (4) (1) (a), the documents to be produced are listed in Regulation 49 (1)."

Thabo Nqhome
07 December 2010

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