If you’re thinking of buying property, but wondering how your marital status will affect the requirements for you home loan application, or whether you need to include your spouse in the process, this article is for you.

One of the most essential rules in home ownership is – the owners of a property must match the applicants on the bond. For example, you can’t bond a portion of a property to one applicant while the other pays cash. All owners of a property will always be jointly and severally liable for any bonds on that property, regardless of whether they’re contributing to the payments or not.

To give further detail to this statement, we have outlined below the different marriage types under South Africa law and how this affects your home loan application and subsequent property transfer.

Unmarried

If a bond applicant is unmarried, only that one person must sign the Sale Agreement and apply for the bond.

“Unmarried” refers to being single – it’s important to ensure that the applicant is in fact unmarried, which can also mean divorced (finalised) or widowed.

An applicant who is separated and/or has a pending divorce (not finalised) will be seen as married as per the type of marriage they had below, until the divorce is finalised in a court of law, and the divorce decree is issued.

Civil Marriage or Union

In a civil marriage or union in South Africa (i.e. a marriage registered at Home Affairs), there are basically two options when registering the marriage:

• Married in community of property (COP) – the default marriage type where no Antenuptial Contract (ANC) was registered either before, or three months after execution
• Married out of community of property (ANC) – where an ANC was executed before marriage or registered within 3 months of execution

For a COP marriage, both spouses have shared assets and liabilities - meaning they must apply for the home loan together. All South Africa banks are strict on this, and must abide by the law. There are no ‘quick-fix’ loopholes.

The important point to note is that an applicant can “mistakenly” misinform the bank of their COP marital status to receive a home loan grant, and even proceed to an instruction. However, if the marriage is registered at Home Affairs, it will be picked up later in the process when the attorneys conduct their due diligence. The applicant must then reapply for the home loan jointly with their spouse.

An applicant who is married ANC, is seen as a separate legal person to their spouse, and are free to do what they please when it comes to buying property – we need not include their spouse at all, should they wish.

Customary marriage

Customary , or “traditional” marriage is negotiated and entered into or celebrated in accordance with customary law. A Customary marriage can either be registered with Home Affairs as a civil marriage (with a civil marriage certificate) or not. If the Customary marriage is also a civil marriage, then it will be either registered as a COP or ANC marital status, and those respective bank requirements will apply.

Although these marriages need to be registered at Home Affairs, failure to do so will not affect the validity. Therefore, even if an applicant cannot provide a marriage certificate, if they regard themselves as married according to their traditions / customs, they are married (an affidavit may be required as proof of marriage).

For a customary marriage, not registered with Home Affairs, it is automatically assumed to be a COP marriage, where both spouses have shared assets and liabilities - meaning they must apply for the home loan together.

Muslim Marriage

A Muslim marriage is regarded as being married according to Muslim Rites / Islamic Rites. A Muslim marriage can either be registered with Home Affairs as a civil marriage (with a civil marriage certificate) or not. If the Muslim marriage is also a civil marriage, then it will be either registered as a COP or ANC marital status, and those respective bank requirements will apply.

However, should the marriage be solely a Muslim marriage and not a civil marriage, the bank requirements for the application is as follows:

• bank will note the applicant is married according to Muslim / Islamic Rites;
• the applicant is free to apply on their own (without the spouse); however
• ultimately the bank holds the discretion with regards to the parties applying.

The purchaser will need to provide the Muslim marriage certificate and (if applicable) the civil marriage certificate, to the banks for the home loan application.

Foreign Marriage

To be classified as a foreign marriage, South African law states that it depends on where the  husband was domiciled (residing) when he got married (not where was born or got married). For example, if he resided outside of South, but got married in South Africa, to a South African citizen, this would technically still classify as a foreign marriage.

If a purchaser who is in a foreign marriage is buying a property in South Africa, their spouse must assist in the purchase of the property - meaning the spouse must co-sign the Sale Agreement (consent to the sale), and the spouse need not become co-owner of the property.

However, the bank requirements for the spouse can differ:

• For FNB and Investec, the bank will:
  • note that the applicant is in a foreign marriage;
  • view the marriage as COP, requiring a joint application by both spouses;
• For ABSA, Standard Bank and Nedbank, the bank will:
  • note that the applicant is in a foreign marriage;
  • request for the spouse to co-sign the documents, but not be an applicant;
  • however, the bank has the discretion to request for the spouse to be an applicant (but this will typically only be requested should there be some ambiguity over the husband’s domicile at time of marriage, i.e. if it is not clear that it was a foreign marriage).

The purchaser will need to provide the foreign marriage certificate, and sometimes proof of residence at time of marriage, to the banks for the home loan application.

Use a reputable mortgage broker

A pre-assessment for a home loan with your mortgage broker should include a comprehensive discussion of your situation, including marital status. Full disclosure is important for your broker to give you the most accurate advice – and remember, they work for you, not the banks!

Using a reputable broker will ensure you get more value out of this free service – including the full-scale service, professional advice, utmost confidentiality and respect with your personal information, speedy approvals and priority with banks.

Phoenix Bonds is a premium mortgage broker in South Africa, with a proven track record (check out our reviews on Google).  For expert advice and personalised service, fill in your details HERE and one of our experienced Consultants will be in touch.