RCR 21 of 2004

This resolution requires that a divorce court order must be lodged where an owner who was formerly married out of community of property or whose marriage was governed by the laws of another country deals with the relevant property and is described as divorced or unmarried. The rationale for the resolution is to determine whether the rights of third parties will be affected and to ensure that the terms of the divorce court order, where applicable, are adhered to. In this article, suggestions regarding how this resolution should be applied in practice are made.

The first question that arises is: How to determine whether the owner was married out of community of property or was married in terms of a foreign country, for the purposes of applying the resolution? It stands to reason that the title deed of the relevant property is the starting point. It must be noted, however, that this will not always be clear from the title deed. For example, the title deed may reflect the status as unmarried, yet the bond that is to be cancelled reflects the status as married out of community of property. In this instance it is clear that the resolution must be applied regardless of the fact that the title deed reflects the status as unmarried.

The second question that arises is: When should the resolution be applied? The question may, at first glance, seem ludicrous, but in reality, as it will be shown, there are instances in which the resolution should not be applied despite the fact that the title deed reflects the status as married out of community of property. For example, it would be absurd to insist on the lodgement of a divorce order where the relevant property has previously been dealt with after the coming into operation of the resolution and the divorce order was lodged with the registration of such dealing. In other words, it is unfair to request an owner, who has already furnished the deeds registry with a divorce order, to continuously do so whenever the relevant property is being dealt with.

In short, what is being suggested above is that a diligent examiner should properly assess the situation in order to make a correct decision regarding the need for calling for the lodgement of a divorce order or not.

Lastly, it must be pointed out that not applying the resolution, when it should be so applied, could be catastrophic.

Republished with permission from SA Deeds Journal

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