Want to purchase a property but you are married in community of property and your spouse is refusing to append his signature for the purchase of your dream property?

In terms of Section 15 (2) of the Matrimonial Act 88 of 1984 spouse married in community of property, shall not without the written consent of the other spouse-

1. alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;
2. enter into a 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
3. 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;
4. alienate or pledge any jewelry, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments;
5. 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;
6. 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 the Act
7. 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

Further in terms of Section 15(4) the consent required for the purposes of paragraphs (b) to (g) of subsection (2),may, except where it is required for the registration of a deed in a deeds registry, also be given by way of ratification within a reasonable time after the act concerned. 

The consent of your spouse is required and it has to be given separately in respect of each act and it has to be attested by two competent witnesses

Section 20 of the Matrimonial Act 88 of 1984 makes provisions for situations such as the above.

Section 20 states that the Court may on application of a spouse order the division of the Joint Estate if the Court is satisfied, that the interest of the spouse is seriously prejudiced by the conduct of the other spouse, However such an order will only be granted if the Court is satisfied that the order will not prejudice the other spouse.

If the Court is satisfied and grants the order, the Estate will be divided into equal share. The Court may further order that your clients Matrimonial Property System also be replaced by another system.

Your Attorney would have to bring an application in terms of Section 20 (1) of the Matrimonial Act 88 of 1984 for a Court to grant an order for the division of the Joint Estate.