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In this age of massive information dissemination on the cyberspace, the growth of information sources on various platforms has led us to believe that many people are now familiar with what marriage in community of property is, at least in its most basic form. For laymen that is enough and useful, because to go anywhere beyond that point would require a qualified legal practitioner to assist e.g. divorces, Antenuptial Contracts etc.

Despite the foregoing, not many people would be familiar with the actual intricacies that are involved in community of property marriages, and we saw it helpful to compile a brief outline of what these are and their place within such a marital regime.

The basic form of Marriage in Community of Property

Wary that there might be others still, who are not familiar with what marriage in community of property is, we will start our discussion there. Marriage in community of property is one of the matrimonial property systems recognised and regulated by the Matrimonial Property Act 88 of 1984. Some refer to it as the default marital property system because where parties get married without specifically dispensing with it, it applies automatically. Customary marriages are also in community of property.

Parties married in community of property jointly and equally own indivisible shares in the common estate between them, whereby all assets and liabilities acquired by either of them before and during the marriage accrue. This effectively means none of the spouses owns assets exclusive of the other except where the law specifically excludes e.g. bequests in a Will which are subject to a marital exclusion clause. In the unfortunate event that one of the spouses is declared insolvent, the other spouse’s status is also affected mainly because of the intertwined common estate between them.

On the other hand, under section 9 (1) of the Divorce Act 70 of 1979, a divorcing spouse may ask the Court to Order that the other spouse forfeit their interest (share) in the joint estate if there are grounds to conclude that the spouse has unduly benefitted from the community of property. The Courts however, require exceptional grounds in order to make Orders such as these. 

With that being said, we will now look at what either of the spouses can do without the consent of the other spouse.

• The formation of a company;
• Making deposits at a banking institution;
• Selling certain movable assets in transactions that do not burden the common estate;
• Contracts in the ordinary course of their own business;

However, for the following activities, written consent is required;

• Withdrawing money held in an account in the name of the other spouse;
• The transfer or amendment of insurance policies, mortgages and securities held in the name of the other spouse.
• Binding oneself as surety.

Where written consent with witnesses is required;

• Selling immovable property to a third party;
• Purchasing an immovable property;
• Entering into credit agreements where the National Credit Act is applicable as per the Matrimonial Property Act 88 of 1984.  

Section 15 of the Matrimonial Property Act 88 of 1984 is instructive on the above.

The cases of Vukeya v Ntshane and Others (SCA) (unreported case no 518/2019, 11-12-2020) and  Visser v Hull and Others 2010 (1) SA 521 (WCC) deal with situations where a spouse sells immovable property without the consent of the other spouse, otherwise married in community of property. For the purposes of this article, we will not discuss these cases except to say, despite there being a requirement of law that the other spouse must give written consent for alienation of immovable property if married in community of property, the Courts’ approach has been one of finding a balance between the innocent, deceived and unsuspecting purchaser on one hand and the interest of the other spouse who ought to have given their consent. We will discuss this aspect in another article.

Non-patrimonial (claims not easily quantified in money) damages, do not fall into the joint estate. For example, if one of the spouses wins a claim for pain and suffering, such will not fall into the joint estate.

Our Family Law department attorneys have extensive experience in divorces, child care and justice, maintenance matters, matrimonial property matters and wide array of others. Our approach is professional and committed.

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