The Trap of Spousal Consent: Beware Marriage In Community of Property

Juristic acts that need written or oral permission from a spouse married in community of property. Understanding Spousal Consent under Section 15 of the Matrimonial Property Act

Beware a Marriage In Community of Property as regulated by the Matrimonial Property Act. While this marital regime sounds romantic as it grants equal powers to partners married in community of property in practice it creates a lot of practical issues, conflict and exposes one or both parties to the creditors and business risk of the other spouse. 

While marrying "In Community of Property" is often viewed as a romantic gesture of total sharing, it is legally one of the most restrictive regimes in South African law. Under the Matrimonial Property Act, your financial independence is severely curtailed because you lose the right to perform many basic "juristic acts" without your spouse's permission. At Louwrens Koen Attorneys, we strongly advise against this default regime. Below is a breakdown of the transactions that will require your spouse's consent if you fail to register an Antenuptial Contract (ANC).

1. Acts Requiring MANDATORY Written Consent

For these major transactions, you cannot act alone. The consent must be in writing and, in most cases, attested by two witnesses:

  • Fixed Property: Selling, mortgaging, or placing a servitude on any immovable property (land or houses) belonging to the joint estate.
  • Investments: Ceding or pledging shares, stocks, insurance policies, fixed deposits, or mortgage bonds held in the joint estate.
  • High-Value Movables: Selling or pledging assets held as investments, such as jewelry, gold coins, rare stamps, or expensive paintings.
  • Credit Agreements: Entering into a contract as a consumer under the National Credit Act.
  • Suretyship: Binding yourself as a surety for someone else's debt. This is a massive risk to the joint estate.

2. Acts Requiring Informal (Oral) Consent

While these do not always require a formal witness, you still legally require your spouse’s permission to:

  • Household Effects: Selling or pledging furniture or other effects of the common household.
  • Receiving Money: Collecting money due to your spouse, such as an inheritance, bursary, prize, or earnings from their separate property.
  • Donations: Giving away assets of the joint estate to a third party if the donation prejudices your spouse's interest.

3. Litigation and Legal Standing

You cannot sue or be sued in your own name for most matters. Written consent is required to institute or defend legal proceedings unless the matter relates to your specific trade, business, or profession. Crucially, Section 17(4) dictates that an application for the surrender or sequestration of a joint estate must involve both spouses. If your spouse's business fails, your personal financial identity is destroyed along with theirs.

The Solution: Register an ANC for R1950

Marrying In Community of Property subjects your daily financial life to constant oversight and shared risk. If you enter into a transaction without the required consent, the joint estate may suffer a loss for which you are personally liable upon divorce or death. Avoid the "Default Trap." For a fixed fee of R1950, our Pretoria Notary office at Loftus Versveld will draft and register an Antenuptial Contract that grants you complete contractual freedom and total asset protection.