Marriage in community of property
When the parties do not enter into an antenuptial contract prior to marriage they will be automatically married in community of property. The property, assets and liabilities belonging to both parties at the time of marriage or acquired any time thereafter become part of the joint estate. The parties own the assets and liabilities in equal undivided shares and they are joint administrators of the joint estate.
The parties in certain circumstances may however own separate property which will not form part of the joint estate for example donations and inheritances where the testator or donator expressly excluded from the joint estate. This exclusion of ownership is only valid between the parties and not against creditors of the joint estate and is thus attachable.
Both parties have the same powers to dispose of the assets of the joint estate. There are however onerous restrictions on the parties to bind the joint estate as set out by article 15 of the Matrimonial Property Act 88 of 1984 that a spouse needs formal written permission for some actions that will bind the joint estate and informal consent for other actions:
Formal Written Consent
(2) A spouse shall not without the written consent of the other spouse—
any immovable property forming part of the joint estate;
(b) enter into any contract for the alienation, mortgaging, burdening with a
servitude or conferring of any other real right in immovable property forming
part of the joint estate;
(c) alienate, cede or pledge any shares, stock, debentures, 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, forming
part of the joint estate;
(d) alienate or pledge any jewellery, coins, stamps, paintings or any other assets
forming part of the joint estate and held mainly as investments;
(e) withdraw money held in the name of the other spouse in any account in a
banking institution, a building society or the Post Office Savings Bank of the
Republic of South Africa;
( f ) enter, as a consumer, into a credit agreement to which the provisions of the
National Credit Act, 2005 apply, as “consumer” and “credit agreement” are
respectively defined in that Act, but this paragraph does not require the written
consent of a spouse before incurring each successive charge under a credit
facility, as defined in that Act;
(g) as a purchaser enter into a contract as defined in the Alienation of Land Act,
1981 (Act No. 68 of 1981), and to which the provisions of that Act apply;
(h) bind himself as surety.
Informal Consent- Does not have to be written)
(3) A spouse shall not without the consent of the other spouse
(a) Alienate, pledge or otherwise burden any furniture or other effects of the
common household forming part of the joint estate;
(b) Receive any money due or accruing to that other spouse or the joint estate by
way of—remuneration, earnings, bonus, allowance, royalty, pension or gratuity, by
virtue of his profession, trade, business, or services rendered by him;
(ii) Damages for loss of income contemplated in subparagraph (i);
(iii) Inheritance, legacy, donation, bursary or prize left, bequeathed, made or
awarded to the other spouse;
(iv) Income derived from the separate property of the other spouse;
(v) Dividends or interest on or the proceeds of shares or investments in the
name of the other spouse;
(vi) The proceeds of any insurance policy or annuity in favour of the other
(c) Donate to another person any asset of the joint estate or alienate such an asset
without value, excluding an asset of which the donation or alienation does not
and probably will not unreasonably prejudice the interest of the other spouse in
the joint estate, and which is not contrary to the provisions of subsection (2) or
paragraph (a) of this subsection.
Consent is unnecessary in certain cases when a spouse acts in the ordinary course of his or her profession.
What happens on termination (death or divorce) of a marriage in community of property?
· On termination of the marriage the joint estate will be divided equally regardless of what spouse earned the most or had the most assets when they married.
· If the marriage is terminated by death of one of the spouses the joint estate is administered and the surviving spouse is entitled to his or her half only after the lengthy administration process is completed. The joint banking account is frozen and the surviving spouse may will have difficulty accessing funds if specific provision has not been made.
Advantages of a marriage in community of property
- This system rests on old time values that marriage is a partnership and as such can be conducive to a harmonious marriage relationship.
- It promotes both legal and economic equality of the spouses. During the marriage and on its dissolution both partners are entitled to a half share in the joint estate and each one has equal powers of administration.
Disadvantages of a marriage in community of property
- Insolvency of one of the spouses affects the total communal property. Where a risk of insolvency exists, it is not a desired system. This marriage regime cannot be recommended where one of the spouses owns a business or is exposed to financial risk.
- The system of equal powers could in cases where the temperament of one or both marriage partners is not collaborative, lead to conflict in the marriage.
If the marriage is dissolved by death of one of the spouses the joint estate is administered which may cause financial stress on the other spouse.