The short answer
Because your parents were married in community of property, your mother has claim to 50% of the joint estate and might be able to overturn the transfer.
The whole question
Dear Athalie
My parents were married in community of property. Before he passed away, my father and his girlfriend were living in the house we grew up in. They changed the title deed to his and his girlfriend's names in 2013 without my mother's knowledge. On the deed it says that he is unmarried, which is not true.
When my father died, only my brother was staying at the house with my dad, his girlfriend and her grandchild. Since my dad's passing, she has changed the locks to the house. How can we regain access?
The long answer
In a marriage in community of property, both spouses own everything in equal shares. This means that as the surviving spouse, your mother has a claim to 50% of the joint estate, and the remaining 50% can be distributed to nominated beneficiaries if he left a will. If he did not leave a will, the remaining 50% of the estate goes to his descendants.
When one of the spouses dies in a community of property marriage, the joint estate is dissolved as such – it can’t have only one owner. This process involves the executor of the estate first settling all the debts that are equally shared between the spouses. These include contractual debt, mortgage bonds, loans and credit cards. Once all the liabilities have been settled, the surviving spouse has a claim for 50% of whatever is left of the joint estate.
As your mother and father were married in community of property, your father could not legally change the title deed of the house to his and his girlfriend’s names without your mother’s permission.
Sections 15(2) and 15(3) of the Matrimonial Property Act 88 of 1984 set out that a spouse married in community of property, shall not, without the written consent of the other spouse, “alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate”.
What is unclear is how this was done without the Registrar of Deeds rejecting these transfers of title deeds because the required consent of your mother was not in place. Further, it is unclear how your father could have gotten away with representing himself as unmarried when Home Affairs should have had your mother and father’s marriage on their database.
Section 15(9) (b) of the Matrimonial Property Act says that if “that spouse knows or ought reasonably to know that he will probably not obtain the consent required in terms of the said subsection (2) or (3), or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall be effected in favour of the other spouse upon the division of the joint estate”.
From this it would seem that your mother has a strong case to overturn the transfer of the title deeds to your father and his girlfriend.
She needs legal advice on how to proceed with this. Legal Aid, which is a means-tested organisation, must help people who cannot afford a lawyer. Their contact details are:
Tel: 0800 110 110 (Mon to Fri 8am – 4pm)
079 835 7179 (Please Call Me)
Email: communications2@legal-aid.co.za
Fraud and Ethics Hotline: 0800 153 728
She could also ask the Black Sash for free paralegal advice. Their contact details are:
Email: help@blacksash.org.za
Helpline: 072 663 3739 / 063 610 1865
She can also send a Please Call me to the helpline numbers.
Wishing you the best,
Athalie
Answered on Jan. 31, 2022, 9:44 a.m.
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