Powers Of Spouses Married In Community Of Property To Purchase Property

As is common knowledge, persons married in community of property essentially co-own everything in equal shares. This would therefore also include a Party’s money, or obligations. A very common question that arises is, “Do I have to consult with my Spouse to buy certain property, and if so, what property?” This will be explained below:

According to the Matrimonial Property Act, a Spouse married in community of property may perform any juristic act without the consent of the other Spouse, unless it involves entering into a credit agreement.

According to both the Matrimonial Property Act and the National Credit Act, the only time a Spouse requires the consent of another is when entering into a credit agreement. For example, should you find yourself in the fortunate position of purchasing a vehicle and you are able to pay for it cash, no consent would be necessary; however if you needed to enter into an agreement in which the car is to be financed, this consent would be necessary.

This is all fair and well provided your Spouse actually agrees. Above it is explained that cash purchases do not require consent, however credit agreements require consent from both Spouses. Let’s say you are not in a position to purchase the car with cash. You have struggles with transport, and if you do not get your own car you’ll lose your job. This is one of those occasions in which you so desperately need your Spouse’s consent to enter into the agreement; but what options are available to you if your Spouse were to say “no”?

Thankfully the Matrimonial Property Act has included a section in which a Spouse’s consent or certain powers can be dispensed with for a specific purpose. If a Spouse refuses to give the required consent, or should you not be able to get the consent for any other reason (let’s say your Spouse has left the country etc, but on paper you are still married), you may approach the Court by way of an Application to grant the necessary permission on their behalf.

If you are able to prove to the Court that the consent was withheld unreasonably, or if there is good reason for the Court to dispense with the Spouse’s consent, the Court may overrule their decision and grant the necessary consent for you to enter into the agreement.

In extreme circumstances, if you are able to satisfy the Court that it is essential for the protection of a Spouse in the joint estate; you may on application to the Court, apply for the other Spouse’s powers under the Act to be suspended for a definite or indefinite period of time.

It can therefore be seen that although you are Party to a joint estate, you are not trapped in a circumstance in which you have been left without any options. If you know where to look, or have the resources, there are many opportunities to turn what may seem to be a problem into nothing more than a simple project.

DUNCAN O’CONNOR

CANDIDATE ATTORNEY