MATRIMONIAL PROPERTY ACT 88 OF 1984

[ASSENTED TO 3 JULY 1984] [DATE OF COMMENCEMENT: 1 NOVEMBER 1984]

(Afrikaans text signed by the State President)

as amended by

Matrimonial Property Amendment Act 91 of 1986

Intestate Succession Act 81 of 1987

Marriage and Matrimonial Property Law Amendment Act 3 of 1988

Insolvency Amendment Act 122 of 1993

General Law Fourth Amendment Act 132 of 1993

Guardianship Act 192 of 1993

Justice Laws Rationalisation Act 18 of 1996

also amended by

Magistrates' Courts Amendment Act 120 of 1993

[with effect from a date to be proclaimed - see PENDLEX]

ACT

To amend the matrimonial property law and to provide for matters connected therewith.

Section 1 Definitions

In this Act, unless the context indicates otherwise-

'banking institution' means a banking institution as defined in section 1 of the Banks Act, 1965, (Act 23 of 1965);

'building society' means a building society as defined in section 1 of the Building Societies Act, 1965 (Act 24 of 1965);

'court' means a provincial or local division of the Supreme Court of South Africa or a divorce court instituted under section 10 of the Black Administration Act, 1927, Amendment Act, 1929 (Act 9 of 1929), and includes, for the purposes of section 16, a judge in chambers, and, for the purposes of section 16 (1), a magistrate's court which has jurisdiction in the matter concerned;

'financial institution' means a financial institution as defined in section 1 of the Financial Institutions (Investment of Funds) Act, 1984 (Act 39 of 1984);

'joint estate' means the joint estate of a husband and a wife married in community of property;

'listed securities' means securities as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act 1 of 1985);

[Definition of 'listed securities' amended by s. 4 of Act 18 of 1996.]

'separate property' means property which does not form part of a joint estate.

Section 11 Abolition of marital power

(1) The common law rule in terms of which a husband obtains the marital power over the person and property of his wife is hereby repealed.

(2) Any marital power which a husband has over the person and property of his wife immediately prior to the date of coming into operation of this subsection, is hereby abolished.

(3) The provisions of Chapter III shall apply to every marriage in community of property irrespective of the date on which such marriage was entered into.

(4) The abolition of the marital power by subsection (2) shall not affect the legal consequences of any act done or omission or fact existing before such abolition.

[S. 11 substituted by s. 29 of Act 132 of 1993.]

Section 12 Effect of abolition of marital power

Subject to the provisions of this Act, the effect of the abolition of the marital power is to do away with the restrictions which the marital power places on the capacity of a wife to contract and to litigate.

Section 14 Equal powers of spouses married in community

Subject to the provisions of this Chapter, a wife in a marriage in community of property has the same powers with regard to the disposal of the assets of the joint estate, the contracting of debts which lie against the joint estate, and the management of the joint estate as those which a husband in such a marriage had immediately before the commencement of this Act.

Section 15 Powers of spouses

(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) as a credit receiver enter into a credit agreement as defined in the Credit Agreements Act, 1980 (Act 75 of 1980), and to which the provisions of that Act apply in terms of section 2 thereof;

(g) as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act 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;

(iv) income derived from the separate property of 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.

Section 16 Want of consent, and suspension of powers of spouse

(1) When a spouse withholds the consent required in terms of subsection (2) or (3) of section 15, or section 17, or when that consent can for any other reason not be obtained, a court may on the application of the other spouse give him leave to enter into the transaction without the required consent if it is satisfied, in the case where the consent is withheld, that such withholding is unreasonable or, in any other case, that there is good reason to dispense with the consent.

(2) If a court is satisfied that it is essential for the protection of the interest of a spouse in the joint estate, it may on the application of that spouse suspend for a definite or an indefinite period any power which the other spouse may exercise under this Chapter.

Section 22 Donations between spouses permissible

Subject to the provisions of the Insolvency Act, 1936 (Act 24 of 1936), no transaction effected before or after the commencement of this Act is void or voidable merely because it amounts to a donation between spouses.