Consent by Spouse necesaary for certain actions when married in Community of Property
Transactions requiring the written consent of the other spouse - Marriage in Community of Property
Section 15(2) of the Matrimonial Property Act provides that a spouse may not, without the written consent of the other spouse:
(a) Alienate, mortgage, burden with servitude or confer any other real right in any immovable property forming part of the joint estate;1
(b) enter into any contract for the alienation, mortgaging, burdening with servitude or conferring of any other real right in an immovable property forming part of the joint estate;2
(c) alienate, cede or pledge any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any other similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate;3
(d) alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments;4
(e) withdraw money held in the name of the other spouse in any account in a banking institution, a building society or at the Post Office Savings Bank of the Republic of South Africa;5
(f) as a credit receiver enter into a credit agreement as defined in the Credit Agreements Act, 1980 ( Act No. 75 of 1980), and to which the provisions of that Act apply in terms of section 2 thereof;6
(g) as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act No. 68 of 1981), and to which the provisions of that Act apply;7
(h) bind himself as surety.8
In addition hereto, where a spouse wishes to institute or defend legal proceedings that do not relate to a spouses profession, trade or business, written consent of the other spouse is required.9
Transactions requiring informal consent - Marriage in Community of Property
Informal consent does not need to be in writing or witnessed and it may be obtained by ratification after the act.1 Section 15(3) of the Act provides that a spouse may not without the consent of the other spouse enter into the following transactions although ratification by the other spouse is permitted in s 15(4):
(a) alienate, pledge or otherwise burden any furniture or other effects of the common household forming part of the joint estate;
(b) receive any money due or accruing to that other spouse or the joint estate by way of -
(i) remuneration, earnings, bonus, allowance, royalty, pension or gratuity, by virtue of his profession, trade, business, or services rendered by him;
(ii) damages for loss of income contemplated in subparagraph (i);
(iii) inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse;
(iv) income derived from the separate property of the other spouse;
(v) dividends or interest on or the proceeds of shares or investments in the name of the other spouse;
(vi) the proceeds of any insurance policy or annuity in favour of the other spouse;
(c) donate to another person any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not and probably will not unreasonably prejudice the interest of the other spouse in the joint estate, and which is not contrary to the provisions of subsection (2) or paragraph (a) of this subsection.
Matrimonial Property Act 88 of 1984s 15(4). In this regard, either oral or tacit consent could be sufficient.
Consent unnecessary - Marriage in Community of Property
Consent is unnecessary for a certain transaction, specifically those transactions that are performed by the spouse in the ordinary course of his or her profession, trade or business;1 transactions on the stock exchange of listed securities and deposits into a banking institution in the name of the spouse who wishes to deal with the deposit.
A contract entered into without the necessary capacity is void except when the act specifically makes provision for third parties to hold the joint estate liable.
Marrying in Community Of Property hinders the parties ability to do business. There is no freedom to trade by either of the parties.