You are married in community of property in South Africa if you entered into a civil marriage without an antenuptial contract. It is the default matrimonial property regime. It applies unless the spouses positively concluded an antenuptial contract before the marriage (or, in the case of a customary marriage governed by the Recognition of Customary Marriages Act 120 of 1998, unless the consequences of the customary marriage have been excluded by an antenuptial contract).
What “in community of property” means
The two spouses no longer hold separate estates. Their assets and liabilities are merged into a single joint estate in which each spouse holds an undivided half-share. This applies to:
- assets owned by either spouse before the marriage;
- assets acquired by either spouse during the marriage;
- debts incurred by either spouse before or during the marriage; and
- the proceeds of any acquired asset.
There are limited exceptions — for example, certain inheritances and donations specifically excluded from the joint estate by the testator or donor.
The consent requirements under section 15
Section 15 of the Matrimonial Property Act 88 of 1984 protects each spouse’s interest in the joint estate by requiring the consent of the other spouse for an extensive list of transactions. The consent must in some cases be in writing, and in some cases attested by two competent witnesses. The list includes:
- alienating, mortgaging or burdening with a servitude any immovable property in the joint estate;
- alienating shares, debentures, insurance policies, fixed deposits and similar investments;
- alienating or burdening assets used in a trade, profession or business;
- binding oneself as surety;
- entering into a credit agreement as defined in the National Credit Act 34 of 2005;
- receiving money on certain accounts due to the other spouse.
In practice, these requirements create friction in households where one or both spouses are commercially active. Spouses who run a business, or who hold a profession exposing them to liability, often find the consent requirements an impediment to ordinary commercial decision-making.
The sequestration consequence
Section 17(4) of the Insolvency Act 24 of 1936 has the consequence that, where one spouse in a marriage in community of property is sequestrated, the entire joint estate is sequestrated. This means that one spouse’s financial troubles can pull the other spouse’s interest in the joint estate into the insolvency. For couples where one spouse is exposed to professional or business liability, this is a significant practical concern.
Estate-planning constraints
Because the spouses do not hold separate estates, neither can make meaningful individual provision in their respective last wills and testaments for assets that legally belong to both. The joint estate is, in effect, frozen on the death of either spouse pending finalisation of the deceased estate.
Can we change?
Yes — by way of a section 21 application to the High Court. The most common reason a section 21 application is brought is to move from in community of property to out of community of property, either with or without the accrual system.
Read about the change-of-regime process → Read about section 21 applications → Apply for an assessment →