Marriage in community of property is a type of matrimonial regime which joins the estates of the two spouses into one estate of equal shares.
Therefore, the couple who marries in community of property owns the joint estate together and the estate can only be divided should the couple choose to terminate the marriage.
Joint estate will comprise of all the collective assets, debts and other liabilities.
Although each spouse is entitled to equal rights to manage the joint estate, some transactions require the consent of the other spouse.
Should one spouse wish to alienate joint assets of the estate, consent from the other spouse will be required. However, written consent is only necessary in certain circumstances.
The following are examples of scenarios where one spouse may act independently regarding acts that are binding on the estate - in other words, where consent from the other spouse is not necessary:
According to the Matrimonial Property Act, there are 5 types of consent which can be given by one spouse to another.
Some circumstances only require informal consent in the form of of oral or verbal consent.
The following are transactions which only require informal consent from a spouse:
Written consent from the other spouse is required for the following transactions:
The following scenarios require written consent from the other spouse which as been signed by two witnesses:
Some situations require written permission signed by two witnesses to be given by the spouse prior to the transaction:
In cases where a spouse enters into a transaction which required consent from the other spouse without having obtained consent, the law will favor the third party to the contract.
In other words, if the third party is unaware or could not have been reasonably aware that (a) consent is required and, (b) that consent was not obtained, then the transaction in question will still be valid.
Additionally, the spouse who was unaware of the transaction is afforded some level of protection through relative compensation should the marriage dissolve and estate be divided.
Marriage in community of property comes with many different pros and cons. It’s important to understand what will be required of each spouse should they get married in community of property, especially the types of consent required for various transactions.
For more information regarding this matter or to find out more about the comprehensive legal services we offer, please feel free to contact us.
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