Legal Articles

Marriage in community of property is a type of matrimonial regime which joins the estates of the two spouses into one estate of equal shares.

Therefore, the couple who marries in community of property owns the joint estate together and the estate can only be divided should the couple choose to terminate the marriage.

Joint estate will comprise of all the collective assets, debts and other liabilities.

Marriage in Community of Property in South Africa - Managing Joint Estate

Although each spouse is entitled to equal rights to manage the joint estate, some transactions require the consent of the other spouse.

Should one spouse wish to alienate joint assets of the estate, consent from the other spouse will be required. However, written consent is only necessary in certain circumstances.

The following are examples of scenarios where one spouse may act independently regarding acts that are binding on the estate - in other words, where consent from the other spouse is not necessary:

• Forming a company or trust
• Entering into a transaction on the stock exchange
• Performing transactions in the usual course of his or her business, profession or trade
• Selling certain movable assets
• Entering into a contract in the usual course of his or her business
• Making donations to third parties

Types of Consent when Married in Community of Property

According to the Matrimonial Property Act, there are 5 types of consent which can be given by one spouse to another.

Informal Consent

Some circumstances only require informal consent in the form of of oral or verbal consent.

The following are transactions which only require informal consent from a spouse:

• receiving money which is meant for the consenting spouse in the form of:
  • A donation, prize or inheritance
  • Bonuses, allowances, earning, remuneration, gratitude for services rendered, pension or damages awarded for the loss of income
  • Income from his or her separate property (rent received from renting immovable property)
  • Proceeds from an insurance policy
  • Interest or dividends on investments in their name
  • Selling common household furniture or appliances
  • Donating common household furniture to a charitable cause

Written Consent

Written consent from the other spouse is required for the following transactions:

• alienating, ceding or burdening insurance policies, mortgage bonds, fixed deposits, shares, stocks or any of the spouse’s investments at any financial institution
• Withdrawing money from any account held in the name of the other spouse
• Alienating or burdening assets of the join estate, kept mainly for investment purposes, such as stamps, works of art, jewelry or coins

Written Consent with Two Witnesses

The following scenarios require written consent from the other spouse which as been signed by two witnesses:

• Entering into a credit agreement in terms of the National Credit Act
• alienating immovable property such as a house, farm or townhouse which belongs to the join estate
• Entering into a contract to purchase immovable property  

Prior Written Consent with Two Witnesses

Some situations require written permission signed by two witnesses to be given by the spouse prior to the transaction:

• The alienation or burdening of immovable property belonging to the communal estate or the granting of the rights to a third party over such immovable property
• Entering into a contract of surety where one spouse binds the joint estate as a surety for debt of a third party

In cases where a spouse enters into a transaction which required consent from the other spouse without having obtained consent, the law will favor the third party to the contract.

In other words, if the third party is unaware or could not have been reasonably aware that (a) consent is required and, (b) that consent was not obtained, then the transaction in question will still be valid.

Additionally, the spouse who was unaware of the transaction is afforded some level of protection through relative compensation should the marriage dissolve and estate be divided.

Van Deventer & Van Deventer Incorporated - Attorneys in South Africa

Marriage in community of property comes with many different pros and cons. It’s important to understand what will be required of each spouse should they get married in community of property, especially the types of consent required for various transactions.

For more information regarding this matter or to find out more about the comprehensive legal services we offer, please feel free to contact us.