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Question
Posted by: Damion | 2010-06-16

Sale of Property in Community of property

Can I sell my property or do i need my wife''s consent. the property is noy on her name but we are married in community of property do i need her consent? please advise

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Our expert says:
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In Visser v Hull and Others 2010 (1) SA 521 (WCC) the deceased sold and transferred property jointly owned by the spouses who were married in community of property to the first to fourth respondents, who were close relatives. The applicant, Mrs Visser, was not aware of the sale and transfer until after the death of her husband when the respondents served her with eviction papers. It transpired that fraud had been perpetrated on her as the property, which according to a municipal valuation was worth R98 000, was sold for R10 500. The applicant sought and was granted an order setting aside the sale and ordering the deeds registry to register the property in her name. Dlodlo J said that s 15(2)(b) of the Matrimonial Property Act 88 of 1984 (the Act) forbade the sale by a spouse, married in community of property, without the written consent of the other spouse, of immovable property falling into the joint estate. The third party was required to take steps to establish whether the contracting spouse had obtained the consent of the non-contracting spouse and could not simply rely on a bold allegation by the contracting spouse that he was not married. An adequate inquiry by the third party was required. The court further said that if a husband, married in community of property, made a donation out of the joint estate to a third party in deliberate fraud of his wife, then the wife or her estate had a right of recourse against him or his estate on dissolution of the marriage and, where necessary, she or her estate could proceed with the actio Pauliana directly against the third party for the gift or its value. The same principles applied equally to a fraudulent transaction in some form other than a donation, such as a fraudulent transaction for the sale of land. The wife in the latter instance, would have to show that there was fraud on the part of her husband, that the sale was unreasonable and that the third party colluded in her husband’s fraud.

So to answer your question you need her consent.

Answered by:
Bertus Preller
Family Attorney
KWJ Inc.
Email: info@divorceattorney.co.za

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Our users say:
Posted by: family law expert | 2010-06-16

In Visser v Hull and Others 2010 (1) SA 521 (WCC) the deceased sold and transferred property jointly owned by the spouses who were married in community of property to the first to fourth respondents, who were close relatives. The applicant, Mrs Visser, was not aware of the sale and transfer until after the death of her husband when the respondents served her with eviction papers. It transpired that fraud had been perpetrated on her as the property, which according to a municipal valuation was worth R98 000, was sold for R10 500. The applicant sought and was granted an order setting aside the sale and ordering the deeds registry to register the property in her name. Dlodlo J said that s 15(2)(b) of the Matrimonial Property Act 88 of 1984 (the Act) forbade the sale by a spouse, married in community of property, without the written consent of the other spouse, of immovable property falling into the joint estate. The third party was required to take steps to establish whether the contracting spouse had obtained the consent of the non-contracting spouse and could not simply rely on a bold allegation by the contracting spouse that he was not married. An adequate inquiry by the third party was required. The court further said that if a husband, married in community of property, made a donation out of the joint estate to a third party in deliberate fraud of his wife, then the wife or her estate had a right of recourse against him or his estate on dissolution of the marriage and, where necessary, she or her estate could proceed with the actio Pauliana directly against the third party for the gift or its value. The same principles applied equally to a fraudulent transaction in some form other than a donation, such as a fraudulent transaction for the sale of land. The wife in the latter instance, would have to show that there was fraud on the part of her husband, that the sale was unreasonable and that the third party colluded in her husband’s fraud.

So to answer your question you need her consent.

Answered by:
Bertus Preller
Family Attorney
KWJ Inc.
Email: info@divorceattorney.co.za

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