Marriage in Community of Property

With due acknowledgement to the Law Society of South Africa

How does it work?

  • Both spouses share equally in the assets and liabilities.
  • Spouses have equal powers of administration and (except for some exceptions) both can act independently.
  • Written consent of both is required for certain important transactions such as those relating to fixed property, suretyship and credit agreements.
  • Informal consent of both is required for transactions such as the selling of goods of the joint household, such as furniture.
  • Consent is not a requirement for transactions relating to trade, business or profession of the spouses.
  • The Act provides for the protection of the spouses should one act to the prejudice of the other.

Advantages

  • This system rests on a sound principle namely that marriage is a partnership and as such can be conducive to a harmonious marriage relationship.
  • It promotes both legal and economic equality of the spouses. During the marriage and on its dissolution both partners are entitled to a half share in the joint estate and each one has equal powers of administration.

Disadvantages

  • Insolvency of one of the spouses affects the total communal property. Where a risk of insolvency exists, it is not a desired system.
  • The system of equal powers could in cases where the temperament of one or both marriage partners is not collaborative, lead to conflict in the marriage.

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