Chapter 4 - Marriage in community of property

Question 1

Cases in which community of property does not arise

Answer 1

1. A valid ANC, excluding community of property, and community of profit and loss
2. A valid postnuptial contract in which community of property and community of profit and loss are excluded.
3. A valid postnuptial contract in which community of property and community of profit and loss are excluded
4. The husband was domiciled in a country where separation of property automatically applies to marriages
5. The spouses are African persons who entered into a civil marriage which is governed by section 22(6) of the Blacks Administration Act.

Question 2

Contents of universal community of property

Answer 2

1. Assets
   - General assets
   - Separate assets
   - Attachment of separate assets
2. Liabilities
   - General debts
   - Antenuptial debts
   - Debts incurred during the subsistence of the marriage
   a. Contractual debts
   b. Delictual debts
   c. Other separate debts
   - Debts which are outstanding at the dissolution of the marriage
   a. Contractual debts
   b. Delictual debts

Question 3

Acts for which the consent of both spouses is required

Answer 3

1. Prior written consent, attested by two competent witnesses, in respect of the transaction separately
2. Written consent, attested by two competent witnesses
3. Written consent without any further requirements
4. Oral or tacit consent

Question 4

Prior written consent

Answer 4

1. Alienating or burdening immovable property which forms part of the joint estate, or conferring any other real rights in it.
2. Suretyship

Question 5

Written consent

Answer 5

1. Entering into a contract to alienate, burden with a mortgage or servitude, or confer any other real right in immovable property which forms part of the joint estate.
2. Receiving credit under a credit agreement as defined in the National Credit Act 2005.
3. Purchasing immovable property under a contract of sale as defined in the Alienation of Land Act 68 of 1981

Question 6

Written consent without any further requirements

Answer 6

1. Alienating or ceding or pledging shares, stocks, 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
2. Alienating or ceding assets held mainly as investments and which form part of the joint estate. eg jewels, coins, stamps and paintings.
3. Withdrawing money credited to the name of the other spouse in any account in a banking institution or post office savings bank.
4. Instituting or defending legal proceedings which don’t relate to the spouse’s profession

Question 7

Oral or tacit consent

Answer 7

1. Alienating or pledging furniture or other effects of the common household which form part of the joint estate.
2. Receiving money which is owed to the other spouse

Question 8

Protection of third parties

Answer 8

A 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 is protected by section 15(9)(a) of the Matrimonial Property Act and is deemed to have been entered into with the required consent, therefore the contract is valid and enforceable.

Question 9

Protection of the spouses against themselves

Answer 9

1. Statutory remedies
2. Common law remedies