Marriage in Community of Property

When the parties do not enter into an antenuptial contract prior to marriage they will automatically be married in community of property. The property, assets and liablilties belonging to both parties at the time of marriage or acquired any time thereafter become part of the joint estate. The parties own the assets and liabilities in equal undivided shares and they are joint administrators of the joint estate.

The parties in certain circumstances may however own separate property which will not form part of the joint estate, for example donations and inheritances where the donator or testator have expressly excluded it from the joint estate. This exclusion of ownership is only valid between the parties and not against creditors of the joint estate and is thus attachable.

Both parties have the same powers to dispose of the assets of the joint estate. There are onerous conditions on the parties as set out in S15 of the Matrimonial Property Act 88 of 1984.

(2) A spouse shall not without the written consent of the other spouse:-

(a) alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;

(b) enter into any contract for the alientation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate;

(c) alienate, cede or pledge any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate;

(d) alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments;

(e) withdraw money held in the name of the other spouse in any account in a banking institution, a building society or the Post Office Savings Bank of the Republic of South Africa;

(f) enter, as a consumer, into a credit agreement to which the provisions of the NCA, 2005 apply, as “consumer” and “credit agreement” are respectively defined in that Act, but this paragraph does not require the written consent of a spouse before incurring each successive charge under a credit facility, as defined in that Act;

(g) as a purchaer enter into a contract as defined in the Alienation of Land Act No 68 of 1981, and to which the provisions of that Act apply;

(h) bind himself as surety.

(3) A spouse shall not without the consent of the other spouse (does not need to be written):-

(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) enumeration, 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;

(a) donate to another person any assets 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.

No consent is necessary in certain cases when a spouse acts in the ordinary course of his or her profession.

What happens on termination (death or divorce)?

On termination of the marriage the joint estate will be divided equally regardless of what spouse earned the most or had the most assets when they married. If the marriage is terminated by death of one of the spouses the joint estate is administered and the surviving spouse is entitled to his or her half share only after the lengthy adminstration process is complete. The joint banking accounts are frozen.

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