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Legal Matters - Oct/Nov 2022

Remaining spouse can obtain property via endorsement


Remaining spouse can obtain property via endorsement

Losing your partner either by death or divorce is traumatic enough. Added to that is the headache regarding the shared property and the affordability of transferring the property to your name.

Fortunately, the Deeds Registration Act allows for more affordable and timeous means for couples, married in community of property, to transfer property to the surviving spouse or, in case of a divorce, to the spouse entitled thereto. Endorsing is quicker and more cost effective than a deed of transfer.

Endorsement is a signature or stamp

An endorsement is done by the Registrar of Deeds in terms of Section 45(1) and refers to a signature or an equivalent stamp that authorizes the transfer of property to the spouse acquiring.
The Registrar of Deeds affects the endorsement on the existing title deed and thus transfers the half share of the deceased spouse or per divorce court order to the spouse acquiring. This endorsement is effective immediately.

Three types of endorsements allow for transfer

Estate Section 45 (1) If the title deed is in the name of two spouses who were married in community of property, or the deceased spouse of such spouses, or in the name of the joint estate of such spouses and the surviving spouse has lawfully acquired the share of the deceased spouse in the property, the Registrar shall endorse on the title deed of the property that the surviving spouse is entitled to deal with such property.

Divorce 45bis. (1) If immovable property registered in a deeds registry in the name of one of two spouses or in the name of both such spouses who were married in community of property but who have been divorced, and the person in whose name such property is registered or registered in the name of both spouses, the registrar may endorse on the title deed of the property that such person is entitled to deal with such property.

Undivided shares 45bis (1A) If immovable property is registered in the deed’s registry in the name of both spouses who were married in community of property but who have been divorced, and such property accrues to both the former spouses in undivided shares in terms of the division of the joint estate, the registrar may endorse on the title deed of such property.

Designated spouse will qualify

The endorsements in terms of Section 45(1) specifically cater for the survivor of two spouses who were married in community of property or whose marriage was governed by the Recognition of Certain Marriages Act, 1991 (Act 18 of 1991), and the surviving spouse has lawfully acquired the share of the deceased spouse in the property or via a divorce decree.


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