Spousal Consent: unveiling the challenges in community of property marriages

29 May 2023 1824
When spouses are married in community of property, our law dictates that a spouse requires the consent of the other spouse when entering into a transaction that affects the joint estate. But what happens when one spouse refuses to provide consent?

In accordance with Section 14 of the Matrimonial Property Act 88 of 1984, spouses married in community of property hold equal rights in respect of the disposal of assets of the joint estate, the contracting of debts which lie against the joint estate, and the management of the joint estate.

The result of the statutory provisions contained in Sections 15 and 17 of the Matrimonial Property Act is that a spouse must in some instances provide their spouse with written consent when entering into certain transactions which would have an impact on the joint estate or when acting in legal proceedings in respect of the joint estate. These provisions aim to protect the joint estate and ensure that both spouses are involved in the administration of their affairs.

That said, life happens and spouses may not agree. Accordingly, our law makes provision for instances where a spouse refuses to provide consent or consent cannot be obtained. Section 16 of the Matrimonial Property Act determines that a spouse seeking consent may apply to court to be permitted to enter into the transaction without the other spouse's consent. The court will consider the circumstances and grant the application if it is convinced that the spouse withholding consent is doing so unreasonably or that a good reason exists to dispense with the consent.

The court also has the authority to, upon application by a spouse married in community of property, suspend a spouse’s power which he or she may exercise in terms of Chapter 3 of the Matrimonial Property Act for a definite or an indefinite period if the court is convinced that doing so would be necessary to protect the interests of a spouse in the joint estate.

Given the nature of a marriage in community of property, spouses so married must appreciate that as a rule their unilateral decision-making powers in respect of the joint estate are limited. That said, where a spouse is being unreasonable in refusing to provide consent, it may be worthwhile considering whether there is a need for the remedies indicated above. Consider consulting your attorney or family law specialist for guidance on whether an application to court is an option for you.

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