Marriages in community of property

Source: Family Law Service

When is the consent of the non-contracting spouse required? In terms of the Matrimonial Property Act certain transactions require the formal consent of a spouse, others require only informal consent and some require no consent at all.

Formal consent

Formal consent in writing of the other spouse is required in respect of the purchase of immovable property (or conferring any real right in any fixed properly forming part of the joint estate), shares, jewellery, coins etc held as investments, money withdrawn from the other spouse’s account, entering into a credit agreement and signing a deed of Suretyship.

Donations by a spouse married in community of property without consent of the other spouse are expressly prohibited.

The written consent of the non-contracting party must be attested by two competent witnesses who must sign in the presence of the party who has signed in their presence.

Without such necessary written consent, all of the above contracts are deemed to be invalid.  However, the necessary written consent can be obtained by way of ratification within a reasonable time after the act concerned except with regard to the registration of a deed in the deeds registry.

Informal consent

The informal consent of the non-contracting spouse must be obtained for the following transactions.  However, the consent need not be in writing, it need not be witnessed and it may be obtained by way of ratification afterwards. If the necessary consent has not been given at all the contract may be voidable at the instance of a third-party with whom the contract was entered into.

Informal consent only is required in respect of transactions relating to the donation or alienation of assets of the joint estate, without value.  If the alienation will prejudice the interests of the non-contracting spouse, the informal consent of the other spouse is required.

If a spouse is entitled to monies due by way of remuneration, damages for loss of income, by way of inheritance, from the proceeds of any insurance policy or annuity due to him or her, the other spouse may collect or receive any of these proceeds only if he or she obtains the informal consent of the other spouse.