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Community of property & contracts

"I am married in community of property. My spouse enters into a contract without my consent. Is the contract valid?" This question comes up from time to time when I consult a client.

I recently had a case where I was consulted by a gentleman. He had received a summons and was being sued by a time share company. His wife, to whom he was married in community of property, had without his knowledge or consent entered into a time-share contract with the company for a period of three years.

My client's argument in the abovementioned case was that the alleged contract was invalid as he had not consented thereto. The matter went all the way to trial, with the time-share company insisting that there had been a valid contract and claiming all the arrear payments from my client. My client's wife had stopped the monthly debits, which she could not afford.

The court in the abovementioned case found that there was no valid contract, as both parties have to consent to the binding of the joint estate when they are married in community of property. My client was therefore successful in his defence of the matter and was even awarded costs in his favour.

Our case law also has plenty of similar examples to the case mentioned above. In Bopape and Another v Moloto 2000 (1) SA 383 (Transvaal Provincial Division) the first, and second Plaintiffs were married in community of property and two children were born of the marriage. During the marriage the second plaintiff started an extra-marital affair, with the Defendant. Second Plaintiff confessed to the affair and undertook to end his relationship with the Defendant, but never did.

In the abovementioned case the second Plaintiff had made certain payments to the Defendant. The Plaintiffs instituted action against the Defendant for repayment of the sums paid on the basis that they constituted donations which were invalid in terms of section 15 (3)(c) of the Matrimonial Property Act 88 of 1984, which prohibits donations made from the joint estate without the consent of the other spouse. The court found the alienation to be void, as it was made without the consent of the first Plaintiff. The Plaintiffs were therefore successful.

I recently had a case where I was representing my client in a divorce. She had signed an offer to purchase a house, but her husband refused to sign, as he first wanted the divorce to be finalised in court. The simple reality of the matter was that by virtue of the marriage in community of property, my client needed her husband's signature and had to wait until after the divorce to buy the house. Only her signature would be then requested.

From the abovementioned examples it is clear that one must be careful when married in community of property before entering into contracts. One should always remember to obtain your spouse's consent. If there is no consent this could lead to all sorts of problems later.

Related articles

Should I advise my spouse of the impending divorce action?

Entering into legal proceedings in Community of Property marriages.


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