What does it mean to be married in community of property?
It means that the estates of both the husband and wife follow the principle of joined together and become one.
Marriages in community of property are regulated by section 14 - 20 of the Matrimonial Property Act 88 of 1984. Section 14 of this Act states as follows:
“Subject to the provisions of this Chapter, a wife in a marriage in community of property has the same powers with regard to the disposal of the assets of the joint estate, the contracting of debts which lie against the joint estate, and the management of the joint estate as those which a husband in such a marriage had immediately before the commencement of this Act”.
This section creates a financial equality between the married couple. However, situations arise where the written consent of the other spouse is required to alienate or encumber the assets in the joint estate.
As an example we can look at Visser v Hull and Others 2010 (1) SA 521 (WCC). In this matter Mr Matthys and Mrs Visser were married in community of property. Mr Matthys then entered into an Agreement of Purchase and Sale for an immovable property that belonged to him and his wife. The Deed of Sale was entered into by him and the four of his family members without the knowledge and the consent of his wife.
Only after the husband’s death, when the said property had already been transferred and registered by the Registrar of Deeds into the names of her husband’s family members, did Mrs Visser become aware of the alienation of the property.
The Agreement of Purchase and Sale was ordered to be null and void and the Registrar of Deeds was ordered to take the necessary steps to have the property deregistered by removing/erasing the names of the four family members so that the registration of the property and ownership thereof could revert to the name of the deceased and thus the deceased estate.
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