Married Person�s Act to pass into law
Gothataone Moeng | Wednesday May 14, 2014 14:53
Section 8 of the new Act provides for couples married under Common Law, to change their property, loss and profit regime from one type to another (either in community or out of) up to a maximum of two times. It allows the same for married couples subject to customary law, who have exempted their property from being administered under customary law.
Speaking yesterday at a workshop to unpack the new law to stakeholders, Ofentse Sebego, Principal Assistant Registrar of Deeds, said the old Act, which was first implemented in 1971, was inflexible and gave too short a period for the validation of property regimes.
The old Act pre-supposed that couples married under Common Law were married out of community of property, unless they signed an instrument registering to be married in community of property before the solemnisation of their marriage. Under the old act, the form needed to arrive before the Registrar of Deeds within 90 days.
However, according to Sebego, this did not always happen. “A lot of married people believed that they were married in community of property when they were not. Sometimes their forms were found to be invalid because they reached our office after 90 days.
“Sometimes when we examined the forms, and sent them back for correction, people never returned them, believing we had rejected them,” he said.
Part of the problem too with the old Act was that it was silent on whose responsibility it was to submit the forms to the Registrar of Deeds, Ofentse said.
The new Act provides for the Registrar of Marriage to submit the forms registering the property regime with the Registrar of Deeds within 180 days, an extension from the previous 90 days. The new Act also allows for the Registrar of Marriages or the spouses to apply to the High Court for an order directing the Registrar of Deeds on an instrument such as a marriage certificate where an error is discovered after registration. The new Act will cover all marriages, even those married under the old Act. It also provides for the validation of property regimes that were found to be invalid under the old act.
According to Labour and Home Affairs’ chief counsel, Mookamedi Motswaagole, the changing of the property regime will not be easy. “For a spouse to change their property regime, they have to satisfy the court that there are sound reasons for the proposed change, that the continuation of the existing property regime is no longer economically and socially appropriate for either of the spouses, that the proposed change is not in bad faith and that sufficient notice of the proposed change has been given to all the creditors of each of the spouses,” Motswaagole said.
The Married Persons Property Act was also amended to simplify the legal language.
When opening the workshop yesterday, Labour and Home Affairs Minister, Edwin Batshu said the law was changed in order to produce functional marriages and thus strengthen societal safety nets.
“It is therefore critical that a secure and legal environment within which marriages subsist is kept simple, friendly, flexible and facilitative as far as possible,” he said.
“The Act as amended is able to deal with the current challenges, some of which threaten the very existence and stability of marriages.”