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Marriage in community of property

In some of my previous articles I have written on the consequences of a marriage in community of property, and the ways in which both spouses have to consent to certain transactions, and if one of the spouses does not consent then the contract is not binding.

An interesting case which came up in 2008 which deals with a situation where two spouses married in community of property try to bind a third party to a contract after only one of the spouses had signed a legal document. This case is quite an unusual one because normally it is a third party who sues the spouses and they then allege that one of them did not sign. In this case it is the opposite scenario.

Govender and Another v Maitin and Another 2008 (6) SA 64 (D) is a case in which the applicants were married in community of property and wanted to conclude a contract with the respondent to purchase immovable property from him.

According to Section 15(2)(b) of the Matrimonial Property Act 88 of 1984 the other spouse’s written consent attested by two competent witnesses is required by the spouse who wants to conclude such a transaction. The first applicant signed the agreement to purchase immovable property from the respondent. Subsequently, the second applicant signed a counter-offer that was made by the respondent, but the first applicant never signed the second agreement (i.e. the counter-offer).

In their application the applicants relied on section 15(9) of the Matrimonial Property Act to enforce the agreement with the respondent. Section 15(9)(a) protects a bona fide third party who enters into a transaction with a person who is married in community of property if the third party does not know, and cannot reasonably be expected to know that the person’s spouse had to consent to the transaction or that the necessary consent was not obtained.

In such an event the transaction is deemed to have been entered into with the required consent. In this case the applicant averred that the agreement was binding on the respondent irrespective of whether or not he knew that consent was required from both the applicants in order to enter into a valid agreement.

The court held that the legislature’s intention in enacting section 15(9) was not to provide a weapon to spouses married in community of property to enable them to enforce transactions against bona fide third parties where the spouses themselves acted against the peremptory provisions of section 15(2).

It is quite interesting to compare a marriage in community of property to a marriage out of community of property with or without accrual. When you are married out of community of property, an Antenuptial Contract is required, and a spouse can enter into contracts without the consent of the other spouse. All types of legal problems can arise from a marriage in community of property, and I firmly believe that it is in everyone’s interests to get married out of community of property.

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article written by Cape Town divorce lawyer, Peter M Baker
petermbaker@yahoo.com


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