Whose duty is it to check consent has been given?
When couples are married in community of property, which is still the most common matrimonial regime in South Africa, both spouses are equally responsible for the management of their joint estate. Therefore, certain transactions require consent from the other spouse and both parties need to co-sign legal documents. What happens if one spouse decides to sell and transfer the jointly owned immovable property without the other knowing?
This might seem unlikely. After all, if two people inhabit the marital home together, it would be impossible for one spouse to put the house on the market without the other knowing. However, it’s not as far-fetched as you might think. Warring couples separate before divorcing, sometimes for years. One partner stays in the marital home; the other moves away. It is not inconceivable that a deceptive spouse might try to sell the jointly owned property without the consent of the other. While the deceived party may have a claim to 50% of the proceeds, there may be little they can do if their spouse has spent the money. And what of the purchaser? If the deceit is discovered in time, the sale may be invalidated, and then they have lost out. This article looks at whose responsibility it is to check that the requisite consent has been granted for the sale.
What does the law say?
The Matrimonial Property Act 88 of 1984 is clear. S152 (a) and (b) states:
“Such a spouse shall not without the written consent of the other spouse (a) alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate; (b) enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate.” However, courts exist because there is a vast difference between what is written in black and white in legislation and what human beings do in practice. Judges sometimes have to determine the motivation or thinking behind a particular action, in deciding if a law has been broken or not. The law is subject to interpretation, which is why case law is helpful.
There are two cases that contribute to our understanding of whose responsibility it is to ensure consent before sale of a property: Vukeya v Ntshane and Others, 2020, and Visser v Hull and Others, 2009. Both hinge on the extent to which the purchaser could reasonably have known that the seller was married in community of property.
Role of the purchaser vs. the conveyancer
The onus is on the purchaser to ascertain whether the consent of the non-contracting party has been obtained. The purchaser cannot simply rely on the contracting party’s claims to be unmarried or married out of community of property. The purchaser needs to conduct an “adequate inquiry” into the facts. Note that the courts place this responsibility on the purchaser, not the conveyancer. So, if you assume the lawyer handling the transfer of property has made all the necessary enquiries, you may not only be disappointed but left stranded when the non-contracting spouse puts a stop to the proceedings. That’s not to say that conveyancers are not conscientious. Conveyancers do check, but a seller may depose to a fraudulent affidavit confirming they have the required consent, whether or not it is true. In the conveyancer’s defence, if a person alleges to be unmarried, does not provide a marriage certificate, and the Department of Home Affairs records also reflect the person to be unmarried, it is reasonable for them to accept that the seller is telling the truth.
The two cases mentioned above vary considerably in what the purchaser could reasonably have known. In the Vukeya case, the purchaser was deemed to have done an “adequate investigation”, as the deed of transfer cited the transferor as unmarried and the power of attorney further confirmed him to be unmarried.
However, in the Visser case, the purchaser was a blood relative of the seller, and so could reasonably have known the seller’s marital status. The court remained unconvinced that the purchaser had done an “adequate investigation”.
What happens next?
If a sale goes ahead without the consent of a spouse, Section 15(9) of the Matrimonial Property Act allows for reparations for both the non-consenting spouse and the purchaser. Here’s what the law says:
When a spouse enters into a transaction with a person contrary to the provisions of subsection (2) or (3) of this section, or an order under section 16(2), and –
(a) that person does not know and cannot reasonably know that the transaction is being entered into contrary to those provisions or that order, it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3), or while the power concerned of the spouse has not been suspended, as the case may be;
(b) that spouse knows or ought reasonably to know that he will probably not obtain the consent required in terms of the said subsection (2) or (3), or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall be effected in favour of the other spouse upon the division of the joint estate.
In plain English, this means, for the purchaser:
Should the purchaser prove that they did not know and could not have known that the seller required the consent of the non-contracting party, the agreement is deemed to be valid and enforceable.
Should the purchaser fail in proving the above, the agreement would be void and the registration of the property into their name would be undone. If undone, the likelihood of the purchaser being successful with a damages claim against the seller would be very little.
For the non-consenting spouse:
The joint estate must have suffered a loss before the non-consenting spouse’s claim for fraudulent concealment is considered. Should the non-consenting spouse be able to prove that their spouse alienated their immovable property without the required consent, they could potentially get an adjustment in their favour upon the dissolution of the joint estate.
For both parties:
This involves a degree of duplication, as the spouse would have to present the same evidence the purchaser did in their claim against the contracting party. However, this duplication can be avoided by joining the actions. If the non-consenting party prefers not to join the purchaser in the action, their claim against their spouse is not affected.
We’ll do our best to protect you
Fortunately, this scenario is rare, but not entirely unheard of. Conveyancers by definition are thorough and, in any transfers SD Law handles, we are observant and careful. We will protect your interests, but as purchaser you also have a duty to ensure the sale is legitimate, especially if the seller is a relative!
For any queries on matrimonial regime or property transfer, contact attorney Simon Dippenaar at SD Law on 086 099 5146 or email email@example.com. SD Law is in Cape Town, Johannesburg and Durban.
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