Co-owing your house

 

A client asked what she should do about a house she and her life partner bought together. There is a bond over the property, and they are separating.

They own the property 50-50 and are jointly liable to the mortgagee. The rationale for buying the property in the first place in their joint names was to share the burden of bond repayments and maintenance costs.

We advised her to agree in writing with her partner to record their respective rights and obligations on what will happen with the property when they separate. 

In an ideal world, couples should enter into a co-ownership agreement before they buy the property, recording such things as: 

• Their ownership proportions (if not 50-50)
• How much will each contribute to the bond and property maintenance (if not equally)
• What will happen if the parties go their separate ways (will they sell, or will one party stay in the property and buy the other one out)
• What happens if one party dies or becomes unable to keep up their payments to the partnership expenses

 

 

Noise nuisance and religion

 

When does the Islamic ‘Call to Prayer’ constitute a noise nuisance?

 

The SCA in Madrasah Taleemuddeen Islamic Institute v Ellaurie [2022] ZASCA 160 at [11]-[19] heard that Ellaurie lived about 200 metres from the Madrasah in Isipingo Beach, where there is a mosque. The KZN Court found that the five daily Azaan calls, delivered by a Muadhin, reminding people of the Islamic faith to pray, invaded Ellaurie’s personal space and ordered that the Azaan should not be audible within the buildings on Mr Ellaurie’s property. 

The SCA disagreed with this finding and set aside the order. 

Its rationale was that limited interference with property rights and enjoyment by owners of other properties in the same neighbourhood is expected and acceptable in law. Mutual tolerance is a civic value restricted by the legal yardstick of reasonableness. Mr Ellaurie placed himself within the realm of a unique or extraordinarily sensitive complainant. The reasonableness of the Azaan could not be judged by his standards, the essence of which was a deep aversion to the Islamic faith. It had to be judged by the standard of an ordinary person living in Isipingo Beach. 

The SCA emphasised that the Constitution provides protection for different religious beliefs and affiliations and guarantees the freedom to observe and manifest different religious beliefs. In this case, the reasonableness assessment had to consider and balance the countervailing constitutional rights. There was no room for these considerations in Mr Ellaurie’s convictions. His motivation for pursuing litigation was not the advancement of constitutional justice but rather his dislike of Islam.

 

When can a settlement agreement be made a court order?

A party's marriage was shaky, and the husband asked us if they could enter into an agreement recording their marriage's proprietary and other consequences should it end in divorce. The husband wanted to know if a court could make the arrangement a court order.

We pointed out that they would have to apply to court in terms of section 21 of the Matrimonial Property Act to vary their matrimonial property regime. We advised them that they could not simply enter into an agreement and have it made an order of court.

In the case of Capital Profound v Guilt Food [2022] ZAMPMBHC 78 at [19]-[26, Capital Profound asked the court to make an agreement it reached with Guilt Food a court order. The court found that before it can make an agreement a court order, one party ought to have sued the other. It was only appropriate to do so if the litigation had commenced.

In Eke v Parsons, the Constitutional Court held that where litigation had not yet commenced, a settlement agreement may not be made an order of court. There must be not only a dispute between the parties that led to the settlement agreement, but the issue or lis concerned must be properly before the court.

 

The legal effect of marriages between foreign same-sex couples that marry in South Africa

 

A person’s domicile is the country where they live or intend to live permanently.

Our robust Constitution has long since recognised same-sex marriages in South Africa. This encourages foreign same-sex couples to travel here to get married.

Where same-sex foreigners marry in South Africa, in terms of the Marriage Act or the Civil Union Act, the marriage is legally valid in almost every country. The law of the land where the husband lives bind the couple.

However, the mere conclusion of a civil union by foreigners in South Africa does not result in a valid marriage.

The foreign couple should register their marriage with the South African Department of Home Affairs and apply for an unabridged marriage certificate, which is stamped ‘Apostille’ by the High Court. The foreign couple uses this to register the marriage in the husband’s country of domicile. Only then will marriage be valid. Some countries – like the United Kingdom and Ireland – recognise South African marriages without an apostille.

 

 

What is the effect of a marriage contract when an African couple marry traditionally and then has a civil ceremony?

In South Africa, African couples often have a dual marriage – they have a customary wedding ceremony followed later by a white wedding in front of a marriage officer. It is a  marriage celebrated in terms of customary law and registered as a civil marriage.

Couples approach me before their civil marriage to help them with an antenuptial contract (ANC). As it may be too late to conclude an ANC, I always ask them if they are not already married. The typical response is that they are not married as they have not yet registered at Home Affairs.

The Recognition of Customary Marriages Act 120 of 1998 allows for monogamous dual marriages. Typically, an African couple begins by negotiating and delivering ilobolo. They will not be formally married until they conclude the final traditional ceremony of their particular culture. For example, after a culmination of various events, the family integrates the bride into her new family. If all the customary formalities are complied with, the parties are then married. Registration at Home Affairs is not a requirement to validate the marriage.

 

In South Africa, the default matrimonial property regime is one in community of property. If a couple wants to be married out of community of property, they must conclude the ANC before they get married.

 

If a couple marries according to custom, they can certainly perform a later civil marriage, but any ANC concluded after the customary marriage would be invalid.

 

In that case, the couple must approach the High Court for an order allowing them to change the matrimonial property system applicable to their marriage. S 21 of the Matrimonial Property Act 88 of 1984 sets out the requirements. They must satisfy the court that there are sound reasons for the proposed change and that the alteration will prejudice no one.