Couples that get married in South Africa in terms of a civil marriage, which is governed by the Marriage Act without an antenuptial contract are automatically married in community of property.
While this might seem like a simple way to determine how a couple’s estates are managed in marriage, there are quite a lot of administrative requirements that come with a marriage in community of property.
Signing a suretyship is one of the areas that needs extra attention from couples that are married in community of property. A suretyship is a document which is signed when someone undertakes to assume responsibility for the debt of a borrower if the borrower defaults.
If one spouse married in community of property needs to sign as surety, the Matrimonial Property Act says that they are not allowed to sign it without the written consent of their spouse.
As a result, when a spouse signs a suretyship without the relevant written consent of their husband or wife witnessed by at least two other people, the suretyship is invalid and unenforceable.
There is one exception to this rule. If a person married in community of property signs as surety in the ordinary course of their profession, trade or business and doesn’t get the written and witnessed consent of their spouse, the suretyship is still valid and enforceable.
Another factor in an inquiry when signing as surety in the ordinary course of business is, where the business was carried on through a company, was the suretyship signed to further the company’s business or in fact the signatories own personal interests. If the latter is true then the suretyship may well be invalid due to it not being signed strictly in the ordinary course of business as required by law.
Other instances where a spouse married in community of property needs the consent of their husband or wife include the selling, disposing of or mortgaging of immovable property; alienating, ceding or pledging shares, stock, debentures, insurance policies and similar assets; alienating or pledging jewellery, coins, stamps, paintings or similar assets held as investments; withdrawing money from an account held in the name of the other spouse; and entering into a credit agreement.
A spouse married in community of property also can’t alienate or pledge any furniture or effects of the common household, receive any money due to their spouse or donate to another person any asset of the joint estate without value (unless the donation will not prejudice the other spouse), without the other person’s consent.
It is important for both couples married in community of property and people who require suretyships from others to remember the legal implications surrounding the requirements pertaining to marriages in community of property.