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The Matrimonial Property Act part 4
By arlene | March 1, 2008
Abolition of marital power
The introduction of the Matrimonial Property Act saw the abolition of the marital power in respect of marriages entered into after the introduction of the Act. The Act also made allowance for spouses to exclude the marital power within two years of the introduction of the Act, by the execution of a notarial deed to that effect. This, however, is no longer necessary as the relevant provisions in the Matrimonial Property Act have been substituted to the effect that the marital power which a husband had over the person and property of his wife, immediately prior to the date of coming into operation of the 1993 amendment, is now abolished. The effect of this is that the husband no longer is the administrator of the joint estate of parties.
married in community of property prior to 1 November 1984, thus bringing these marriages into line with marriages contracted out of community of property and marriages in community of property, with the marital power excluded by notarial deed.
Since the abolition of marital power, the wife acquires full capacity to contract and litigate on much the same basis as the wife in a marriage out of community of property. The wife also acquires concurrent administration of the estate, with each spouse having equal power in most cases. The exceptions which, in some cases require written consent, are:
- Dealing with immovable property that forms part of the joint
- estate.
- Items such as jewellery, coins, stamps, paintings, shares, stocks, debentures, insurance policies, mortgage bonds, fixed deposits and similar investments forming part of the joint es‑
- tate.
- The withdrawal of money held in the name of the other spouse in any bank, building society or post office account.
- Being a credit receiver in terms of the Credit Agreements Act, which succeeded the Hire-Purchase Act.
- Any act of suretyship.
- Any dealing with furniture or household effects that form part of the joint estate.
- Income accruing to the other spouse.
- Potentially prejudicial donations.
- Litigation.
The other spouse’s written consent attested by two witnesses is required for:
- each act of registration in a Deeds Office;
- each contract of suretyship;
- each contract in respect of immovable property, and
- each credit and instalment sales agreement.
Written consent only is required for:
- any alienation or encumbrance of an investment;
- any withdrawal of money from a bank, post office or building society account; and
- any form of litigation.
No form of consent from the other spouse is required for any acts related to:
- income;
- damages for loss of income;
- inheritance;
- dividends
- interest; and
- proceeds from insurance.
The effect of this amendment has also simplified the procedure in regard to deed registrations. For example, applications by spouses to endorse title deeds of immovable property forming part of a joint estate and registered in the name of either the husband or the wife, with the name of the other spouse, will no longer be necessary, as any spouse married in community of property may only alienate such property with the written consent of the other spouse. It may be noted that the abolition of the marital power does not affect the legal consequences of any act or omission before such abolition.
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