When a couple is married in community of property, they share one joint estate which can be generally administered by either spouse. However, this general rule has limitations, and the Matrimonial Property Act 88 of 1984 (“the Act”) prescribes specific instances where a person married in community of property must have the consent of their spouse to carry out certain acts. One such instance is where a spouse wishes to sell immovable property out of the joint estate, which should be compared to the law regarding spouses married in community purchasing a new property.
The general rule
Spouses married in community of property can administer the joint estate concurrently, meaning each spouse has the capacity to perform juristic acts on their own. Section 15(2) of the Act qualifies this by listing specific transactions for which one spouse needs the written consent of the other. Without that consent, the transaction is open to challenge and may be invalid.
Selling or burdening immovable property
The listed transactions in Section 15(2) include:
- alienating, mortgaging or burdening with a servitude any immovable property forming part of the joint estate, or conferring any other real right in that property (Section 15(2)(a)); and
- entering into a contract to do any of these things (Section 15(2)(b)).
A spouse who wants to sell the marital home or any other immovable property in the joint estate therefore needs the other spouse’s written consent, both for the deed of sale and for the transfer documents.
Other transactions that require consent
Section 15(2) of the Act also requires written consent to:
- alienate, cede or pledge shares, policies, fixed deposits and similar financial assets, or alienate or pledge assets held mainly as investments (jewellery, coins, stamps, paintings);
- withdraw money held in the other spouse’s name in a bank, building society or the Post Office Savings Bank;
- enter into a credit agreement as a consumer under the National Credit Act (though not each successive charge under an existing credit facility); and
- bind oneself as surety.
Buying property: the exception in s 15(2)(g)
Consent is also required where a spouse, as purchaser, enters into a “contract” as defined in the Alienation of Land Act 68 of 1981, to which that Act applies. This is typically an instalment sale where the price is paid over a period of time and the agreement is recorded against the title deed.
A standard cash sale is not a “contract” as defined in the Alienation of Land Act. Section 15(2)(g) therefore does not apply to cash purchases and one spouse has full capacity to bind the joint estate by signing an offer to purchase immovable property alone. This was discussed more fully in Terry and Another v Solfafa and Others [2019] ZAFSHC 143. Important to note is that while one spouse may sign the Offer to Purchase alone, the joint estate will be bound, and the property will be transferred into the names of both spouses married in community of property. Both spouses will, however, be required to sign the necessary transfer documents with the conveyancing attorneys attending to the transfer.
Practical points to consider when dealing with immovable property
- Selling a property? Both spouses married in community of property must sign to accept the Offer to Purchase, or the other spouse must consent in writing.
- Buying in an instalment sale? Consent is required by the spouse if married in community of property.
- Buying for cash? One spouse can sign the offer to purchase, but check whether financing arrangements such as a mortgage bond or credit agreement trigger separate consent requirements.
- Not sure of the marital regime? Confirm this before any offer is signed, because it determines whose signature is required.
It is important to consider the law and contractual capacity of spouses from the outset, as getting this wrong can leave a transaction vulnerable to challenge or could invalidate the agreement, leading to a considerable cost in time and money to buyers, sellers and agents alike. A short conversation with a conveyancer before signing an offer can provide invaluable protection.
This article is for general information purposes only and does not constitute legal advice. We recommend consulting with one of our qualified attorneys and conveyancers about your specific circumstances.
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Dealing with the sale or purchase of property where one or both parties are married in community of property? Understanding the consent requirements before signing an offer can help prevent costly disputes or delays.
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Our team provides strategic legal advice on property transactions, matrimonial property regimes, conveyancing and the contractual capacity of spouses.