Land tenure and mapping marital rights and obligations

Session

Land reform and land tenure

Full Paper Review

No

Authors

Leslie Anne Downie, Stellenbosch University, South Africa, leslie@downieconsult.co.za

Abstract

Land rights change on date of marriage. This has far-reaching consequences for the land tenure debate, the extent of which is generally overlooked. The recording of personal co-habiting status and the recording of diagrams cover similar conceptual areas, indicating that current legal debates surrounding marital status could benefit from a pooling of ideas from the field of geomatics.

In order to facilitate this, an overview will be given of the South African law on: the manner in which rights vest on date of marriage; the difference between a marriage in community of property and out of community of property; the effect of ante-nuptial agreements and lobola agreements; the effect on land rights if a couple converts their marital system to a different one after their marriage; the consequences of death, divorce and insolvency on the loss of land; the role of the conveyancer in identifying and entrenching rights vesting by marriage; the cost of pre-nuptial agreements and the process for registering them; access to justice for the poor who need pre-nuptial contracts to protect their rights, the impact on vulnerable men, women and children when pre-nuptial contracts are not available to the poor, and the potential for cell-phone technology to be used to record marital status.

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