Asked by the Customer on 24-10-2017 23:33:36
Question posted in the Property Law category relating to Gauteng

Hi.I have 3 kids with this spouse.I have been seperated for 1 year 10 months living in a rented property.i applied for a divorce and he contested even though I claimed nothing out of the joint estate.We are married in community of property.I asked for maintenance only.Anyhow I want to buy a property and get a bond.I earn a good salary and have a good credit score.Unfortunately I suspect his credit rating is bad as he has fraudulent mtn accounts taken out using his identity. I want to buy this property independently and pay for it independently and own it independently...but because we are still legally married the bank requires his consent and will look at his credit rating as far as I understand.Is there any type of legal document that I can get to state that though we are married ICOP I want to buy this property independently...like a separation of assets...so that the bank will not require his consent.

Further information relating to Question:

Basically to Cap the assets so that I will be considered as an entity on my own.

Also our first property he put in his dad's name.its paid off.His second property he put into a trust and paid 1.6 mil cash. I never claimed for any of this in the divorce settlement....and yet I can't get my own Bond because of factors relating to him.he has two properties fully paid off and I can't even apply for a home loan.

Posted by Att. Patrick on 25-10-2017 05:47:34

Hi there and thank you for your question,

Unfortunately in the eyes of the law you are married in community of property and that means that there is a single joint estate that you are both co-owners of. That is the only way that the banks will look at this. There is absolutely no way that the banks will change their view. This is because of the strict provisions of the Matrimonial Property Act which requires a financial institution to have your spouses consent before you can incur a liability against the joint etsate. 

Literally the only way that you can do this is to get a third party (like your Dad) to buy the house and put it into his name, AND also for him to obtain the bond for the property - but you make the bond payments. 

There is no other way, because while it might be easy enough to buy a house and put it into your name, you obtaining the bond without your spouses consent is impossible.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

But what about legal separation and or changing marital property regime from in COP to out of COP

But what about legal separation and or changing marital property regime from in COP to out of COP

Posted by Att. Patrick on 28-10-2017 13:39:27

You can change your marriage regime from in COP to out of COP, but it is a full high court application and you are at the hands of the judge. Basically you will both need to agree that this change must be done. You will need to use the services of an attorney and advocate to draft your application. The application will need to be served on ALL of your creditors, and be advertised in the newspaper. You will need to then go to court and ask the judge to grant the order.  If the order is granted, you will then to take the court order to Home Affairs in order for your marriage regime to be updated. You can do that, but it will cost you approximately R35k to do so. 

I can't refer you to a specific attorney, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified attorneys in your area who will be able to assist you further! You can also click on the following link Find a Law Firm specialising in Matrimonial

In SA, there is no such thing as legal separation. It doesn't exist as a formal concept. You can separate (i.e. live in different places) but you will still be married in the eyes of the law, and in the eyes of the banks!