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The rights of spouses married in community of property to enter into transactions
relating to their joint estate is governed by Section 15 of the Matrimonial Property
Act 88 of 1984 (the “Act”). Although in general, a spouse may perform any juristic
act in respect of the joint estate without the consent of the other, there are a
number of transactions listed in the Act that does require the consent of the other
spouse, including certain formalities which may also need to be complied with in
order to evidence the consent.

For a number of the transactions listed in the Act, the consent of the other spouse
can be obtained after the act to ratify the transaction, provided such consent
is obtained within a reasonable period of time after the transaction. But such
ratification is not possible with all transactions such as for example with the sale of
immovable property or the entering into a contract of surety, understandable given
the important consequences for the joint estate of such transactions. It is also clear
from the Act that spouses married in community of property are required to comply
with the Act and ensure that the necessary consents and formalities are met.
But where does this leave a third party contracting with a spouse married in
community of property?

The Act regulates this position by determining that when a spouse enters into a
transaction with a third party without the necessary consent and the third party
does not know (or cannot reasonably know) that the necessary consent has not
been obtained, it is deemed that the necessary consent has been given.
What this boils down to is a consideration of the interests of the parties and the
weighing up of the interests of the innocent spouse against the prejudice the third
party would suffer should the transaction be set aside or continue (as the case
may be). To benefit from the presumption provided for in the Act, the actions of the
third party are relevant. In instances where the third party knew that the spouse who
entered into the transaction did not act with consent or should have reasonably
known such (based on the facts at hand), the third party will not be able to enjoy
the protection of the presumption and the transaction may be invalid for lack of
consent. This translates into a duty of enquiry for businesses - making it a prudent
business practice for any business that concludes transactions where consent
would typically be required to ensure that the necessary spousal consents have
been obtained. It does not mean that spouses married in community of property
can ‘get out of any contract’ by not having the consent of both spouses, as the Act
is clear in expecting such spouses to meet the letter of the law, but it does at the
same time not blindly protect a third party that should ‘have known better’ at the
cost of the innocent spouse. Family

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