Blunder invalidates couple's marriage regime
Mpho Mokwape | Tuesday February 8, 2022 06:00
The couple, Charles and Atang Maphane, has been at each other’s throats following an error found in their marriage signing, which was never rectified until the divorce proceedings were instituted.
They had initially consented to in community of property marriage regime, but their documents were never fully signed and registered due to an error that occurred making it hard to determine the stance of their marriage until they sought the court’s intervention.
The woman’s worst fear was to leave their short-lived marriage empty-handed when the ex-husband insisted that their marriage was out of community since the mistake was never rectified.
Her worst fear came true as the highest court has deliberated that due to the incompleteness of the signing of documents that invalidated their in community of property regime.
The court has rendered that the pair were married out of community of property, therefore they will not be sharing assets accumulated four months into the marriage.
According to the judges, marriage regime documents should be completely signed and registered for a marriage regime to be legally recognised.
“In this case, while the parties may have properly signed the form that they intended their marital regime to be in community of property, that form was however not registered within 180 days because of a defect that was found,” stated the court.
The acting judge of the Court of Appeal, Barnabas Nyamadzabo explained that the law clearly stated that such form ‘shall not be valid unless fully registered’ and that it was clear that the form signed by the parties was not registered, rendering it invalid and of no force or effect.
He said it meant that essentially there was no form at all, therefore in the absence of that then the default position was that marriage out of community of property kicks in and also that there was no evidence before the court that the couple had acquired property together.
“It should be noted that the couple were married only for roughly four months or so before problems in their marriage emerged. They had essentially lived separate lives save for jointly contributing to their child’s education and upkeep from their independent sources of income,” he said.
“There was no evidence before trial court that the couple had acquired property together as it is normally the case in instances where such a concept of universal partnership is applicable.”
Justice Nyamadzabo pointed out that as such there was no basis in seeking to bring the universal partnership to the marriage and that it was also the responsibility of the ex-wife to establish such a partnership in clear terms if she wanted it to be considered as she wished.
At the back of the case is that the couple, who were fighting each other, wanted the courts to determine whether their marriage regime was in or out of community of property.
Though at the beginning of their marriage in March 2017 they consented to in community of property marriage regime and signed some documents, the documents were never submitted to the Registrar of Deeds because an error was found by the district commissioner’s office in Selebi-Phikwe where the couple wed.
Subsequently, the mistake was never rectified leaving their marriage regime now questionable whether it was in or out of community.
The ex-husband, who is said to have initiated the divorce, believed that their marriage was out of community of property while the ex-wife believed it was in and that it would be unfair to leave the marriage empty-handed.