Foreign marriages and deeds

It happens quite frequently that one has to deal with estate matters where the deceased's marriage was governed by the laws of a foreign country. As we all know for practical reasons such marriages are deemed to be marriages out of community of property with the retention of the marital power. The exact marital regime then becomes important when the land is being dealt with or when such a marriage is terminated by death or divorce.

When a party to such a foreign marriage deals with his/her property it is a matter of getting the required assistance by the spouse, if he or she is not also party to the transaction, which makes for pretty plain sailing. However, in the case of the dissolution of such a marriage, either by death or divorce, the matter takes on a completely different colour. I want to address the situation regarding deceased estates of persons whose marriage is governed by foreign law for this article as we often find in day to day conveyancing.

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.

The process of administration of the estate is supervised by the Master of the High Court in terms of the Administration of Estates Act 66/1965 (AEA). In this regard see Meyerowitz on Administration of deceased Estates 1.7 where inter alia the author says: "In the exercise of this function the Master is by the Act given very extensive powers of supervision ranging… from appointment of executors,… to decisions regarding alienation of assets and the adjudication upon claims made against estates…..The main task of the Master's Office is the examination of accounts of administration prepared by the representatives of estates. While such accounts have not to be formally confirmed by the Master, they are nevertheless carefully scrutinized and, if they are not in order, the Master advises the estate's representative of his requirements in the form of a 'query-sheet".

Once the Master is satisfied with account every account must lie open at the Master's office for inspection by any interested person or persons for at least 21 days. If the deceased was not ordinarily resident in the district in which the Master's Office is situated, then a duplicate account must similarly lie open for inspection by interested parties at the magistrate's office for the area where the deceased was ordinarily resident for 21 days (see section 35(4) of AEA).

The executor must also give notice of the fact that the account is lying open for inspection. Such notice must specify where and during what period the account will lie open for inspection (see section 35(5) AEA). This notice must be published in the Government Gazette as well as at least one newspaper circulating in the district in which the deceased ordinarily resided. If in the 12 months preceding his death the deceased also resided in any other district the notice must also be published in at least one newspaper circulating in that district. The purpose of the account to lie open for inspection is to give creditors and beneficiaries the opportunity to object to the account if they consider the account to be incorrect.

Any person who has an objection to the account must then lodge his objection in the manner and within the time period as determined in section 35(7) of AEA. As can be seen then, the legislator has prescribed extensive provisions regarding the administration of the estate of a deceased person, which obviously includes a deceased person whose marriage was governed by foreign law, to ensure that proper notice is given to all and sundry who may have an interest in such person's estate, to lodge an objection to such account and the way the administration of the estate is being done.

The Registrar of Deeds does not consider himself bound by 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). Does this extend to the determination of the marital regime of persons whose marriage is governed by foreign law? I will leave that to more learned people than me to decide, but the statement in Jones does not seem to indicate that. It would seem to relate to the determination of the heirs and the manner in which the assets devolve and not to other matters. If one looks at what the Court said in Ex Parte Broodryk 1944 TPD 57 it would certainly seem that that is the case: "It was contended that the Registrar of Deeds had no authority to question the liquidation account confirmed by the Master. But under regulation 50, published in terms of Act 47 of 1937, it is provided that where land is to be transferred in pursuance of the terms of a will the Registrar may require a copy of the liquidation account to be lodged in addition to other documents……..The provisions of this regulation may be the result of the decision in Ex Parte Amm's Executors 1921 TPD 273 where Curlewis, J pointed out that the practice of the Deeds office requiring conveyancers seeking to pass transfer out of an estate to certify that liquidation accounts had been confirmed was a "very wholesome practice, and one which I should be very reluctant to disturb"(this practice was later taken up in Act 66/1965 as section 42(1)) In these premises it seems to me that the Registrar would at least have been entitled to draw attention to the different interpretations placed on the relevant clauses of the will, in the liquidation account and the petition". But why then be sceptical about the marriage regime applicable to the marriage of the deceased if the process has already gone this far?

Be that as it may, conference decided in Registrars Conference Resolution (RCR) 1/2003 that section 45 of the Deeds Registries Act (DRA) 47/1937 may be applied to marriages in community of property governed by foreign law, but that proof of the community of property must be lodged. RCR 5/2004 asked of conference what proof must be lodged. The resolution was: "Proof from the foreign mission of the relevant country or an opinion from an expert will be required".

Keep in mind that the land forming part of an estate may only be transferred once the account has lain open for inspection. In other words, the entire process requiring the giving of notice, that the account lie open for inspection, that objections be raised within a certain time, etc. has been completed. It seems like a case of overkill to yet again ask for more proof of the marital regime when the way the account was drawn, which reflects the way the estate is being administered, has already passed that test. That is going right back to the beginning of the process of administration of the estate. It costs money to obtain such a report. Who must now pay for this additional, seemingly unnecessary, expense? Also, who will be considered an expert for such purposes? Most probably a person in the particular country, which will add even more to the costs, not to mention lost time.

This resolution causes unnecessary hardship and seems to take the matter too far, with respect. After such an exhaustive process which the account and indeed the very administration of the estate has gone through, there seems to be no reason why the Deeds Office cannot simply accept the liquidation and distribution account as proof of how the estate is being administered, as in or out of community of property. There seems to be no need for one State Office to doubt the conclusions and processes of another State Office, especially where such a time proven process is employed.

Dudley Lee
24th November 2010