| (1) |
Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse. |
| (2) |
Such a spouse shall not without the written consent of the other spouse— |
| (a) |
alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate; |
| (b) |
enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate; |
| (c) |
alienate, cede or pledge any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate; |
| (d) |
alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments; |
| (e) |
withdraw money held in the name of the other spouse in any account in a banking institution, a building society or the Post Office Savings Bank of the Republic of South Africa; |
| (f) |
enter, as a consumer, into a credit agreement to which the provisions of the National Credit Act, 2005 apply, as ‘consumer’ and ‘credit agreement’ are respectively defined in that Act, but this paragraph does not require the written consent of a spouse before incurring each successive charge under a credit facility, as defined in that Act; |
[Paragraph (f) substituted by section 172 of Act No. 34 of 2005]
| (g) |
as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act No. 68 of 1981), and to which the provisions of that Act apply; |
| (h) |
bind himself as surety. |
| (3) |
A spouse shall not without the consent of the other spouse— |
| (a) |
alienate, pledge or otherwise burden any furniture or other effects of the common household forming part of the joint estate; |
| (b) |
receive any money due or accruing to that other spouse or the joint estate by way of — |
| (i) |
remuneration, earnings, bonus, allowance, royalty, pension or gratuity, by virtue of his profession, trade, business, or services rendered by him; |
| (ii) |
damages for loss of income contemplated in subparagraph (i); |
| (iii) |
inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse; |
| (v) |
dividends or interest on or the proceeds of shares or investments in the name of the other spouse; |
| (vi) |
the proceeds of any insurance policy or annuity in favour of the other spouse; |
| (c) |
donate to another person any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not and probably will not unreasonably prejudice the interest of the other spouse in the joint estate, and which is not contrary to the provisions of subsection (2) or paragraph (a) of this subsection. |
| (4) |
The consent required for the purposes of paragraphs (b) to (g) of subsection (2), and subsection (3) may, except where it is required for the registration of a deed in a deeds registry, also be given by way of ratification within a reasonable time after the act concerned. |
| (5) |
The consent required for the performance of the acts contemplated in paragraphs (a), (b), (f), (g) and (h) of subsection (2) shall be given separately in respect of each act and shall be attested by two competent witnesses. |
| (6) |
The provisions of paragraphs (b), (c), (f), (g) and (h) of subsection (2) do not apply where an act contemplated in those paragraphs is performed by a spouse in the ordinary course of his profession, trade or business. |
| (7) |
Notwithstanding the provisions of subsection (2) (c), a spouse may without the consent of the other spouse— |
| (a) |
sell listed securities on the stock exchange and cede or pledge listed securities in order to buy listed securities; |
| (b) |
alienate, cede or pledge— |
| (i) |
a deposit held in his name at a building society or banking institution; |
| (ii) |
building society shares registered in his name. |
| (8) |
In determining whether a donation or alienation contemplated in subsection (3) (c) does not or probably will not unreasonably prejudice the interest of the other spouse in the joint estate, the court shall have regard to the value of the property donated or alienated, the reason for the donation or alienation, the financial and social standing of the spouses, their standard of living and any other factor which in the opinion of the court should be taken into account. |
| (9) |
When a spouse enters into a transaction with a person contrary to the provisions of subsection (2) or (3) of this section, or an order under section 16(2), and— |
| (a) |
that person does not know and cannot reasonably know that the transaction is being entered into contrary to those provisions or that order, it is deemed that the transaction concerned has been entered into with the consent required in terms of the said subsection (2) or (3), or while the power concerned of the spouse has not been suspended, as the case may be; |
| (b) |
that spouse knows or ought reasonably to know that he will probably not obtain the consent required in terms of the said subsection (2) or (3), or that the power concerned has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, an adjustment shall be effected in favour of the other spouse upon the division of the joint estate. |
Implementation of Geneva Conventions Act, 2012
