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Is your consent required when your spouse makes a donation to a third party?

In a recent judgement by the Supreme Court of Appeal (on 25 March 2020), the court was asked to consider the question of whether or not the consent of a spouse was required when her husband, to whom she was married in community of property, made a donation to his girlfriend and the two children who were born from the relationship with his girlfriend.

Section 15(1) of the Matrimonial Property Act 88 of 1984 provides that either of the spouses 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.  However, this subsection is subject to the provisions of Section 15(3).

Section 15(3)(c) stipulates that a spouse shall not without the consent of the other spouse 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.

Section 15(9) provides that any such transaction entered into without the necessary consent is void and unenforceable, unless the other party to the transaction did not know or could not reasonably have known that the transaction was contrary to the provisions of section 15.

The court took into consideration the value of the donation, the reason for the donation, the financial and social standing of the spouses, their standard of living and other facts to determine whether the donation would unreasonably prejudice the interest of the other spouse, and also whether the girlfriend should have reasonably known that the donation was made without her boyfriend’s wife’s consent.

Based on the fact that the asset represented the bulk of the value in the joint estate, the court was satisfied that the non-consenting spouse would be unreasonably prejudiced by the donation so made and that the girlfriend ought to have known that it was made without the wife’s consent.

The transfer of the donated asset was subsequently declared void.

If you are married in community of property and you intend to make a donation of significant value to a third party, first obtain the consent of your spouse, preferably in writing, before making the donation.

Should you require any assistance please contact  one of our experts:

For the complete judgement, click here - Marais NO and Another v Maposa and Others [2020] ZASCA 23
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