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Marriages in Community of Property: What you need to know

In South Africa, if you marry without an antenuptial contract, you are deemed to be married in community of property. This means that the spouses’ estates (assets and liabilities) are joined together, and each acquires an undivided half share of the joint estate on dissolution of the marriage. All assets and liabilities belonging to the spouses prior to and after the conclusion of the marriage form part of the joint estate, subject to certain exceptions. Should judgement be granted against either spouse, creditors may execute against the joint estate, effecting both spouses. Furthermore, the effect of sequestration of a joint estate is that both spouses become insolvent, and both are subject to the effects of sequestration.

In principle, both spouses have equal powers with regard to the management of the joint estate, but certain transactions must be performed with the other spouse’s consent (either formal or informal consent). Failure to obtain the requisite consent can render the transaction void. This however does not invalidate the transaction insofar as third parties are concerned, provided that the third party did not know or could not reasonably have known that such consent was required.

On dissolution of the marriage, the court may grant a redistribution order in favour of the non-consenting spouse if the contracting spouse at the time of the transaction knew or ought reasonably to have known that he did not have or would probably not have obtained the other parties’ consent but nevertheless entered into the transaction and the joint estate suffered a loss as a result thereof.

The court also has a discretion to grant an order that a spouse forfeits the benefit of being married in community of property, partially or wholly, if it finds that such spouse will be unduly benefitted should a forfeiture order not be granted and after considering certain factors, such as the duration of the marriage, the circumstances which gave rise to the breakdown of the marriage and any substantial misconduct by either party.

In conclusion, it is advisable to acquaint yourself fully with chapter III of the Matrimonial Property Act 88 of 1984 prior to entering into a marriage in community of property, particularly which transactions require the consent of your spouse and what type of consent is required (whether formal or informal). Furthermore, should you wish to exclude community of property from your intended marriage, you may do so by entering into an antenuptial contract prior to the conclusion of your marriage and having such contract registered as prescribed in terms of the Deeds Registries Act 47 of 1937.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s.)