What is yours is ours, with or without your consent

In terms of the South African matrimonial property regime, all marriages are concluded in community of property. This is so unless, among other things, a valid antenuptial contract excluding community of property, and community of profit and loss, has been entered into before a marriage.

Should a couple conclude a marriage, without a valid antenuptial contract, the legal consequence is that there is a merging of two separate estates of the couple. Merging of the separate estates means that all assets that a couple had before the marriage, and all which they acquire during the marriage, fall into the now joint estate by operation of the law.

Having a joint estate has the consequence that one of the spouses cannot legally perform juristic acts affecting the joint estate, without the consent of the other. The question then is should a tenant, who is married in community of property, obtain the consent of the other spouse before concluding a lease agreement? Should the lease agreement be intended to be registered, will consent by the other spouse be required for the notarial lease agreement to be entered into? Once registered, may the tenant cede such rights without the consent of the spouse?

Section 15 of the Matrimonial Property Act 88 of 1984 provides that a spouse in a marriage in community of property may not perform certain juristic acts, with regard to the joint estate, without the written consent of the other spouse. In terms of section 15(1)(f) of the Matrimonial Property Act one of the juristic acts, which cannot be entered into without the consent of the other spouse, is entering into a "credit agreement" as defined in the National Credit Act 34 of 2005.

In the instance of a lease agreement, rental is paid over a specified period and one may not be faulted in concluding that such an agreement is a credit agreement of some sort. This is especially so on the sole reading of the definition of a "consumer" – a tenant under a lease agreement – and "credit provider" – a landlord under a lease agreement – in terms of section 1 of the National Credit Act. However, on further reading of the National Credit Act, section 8(2)(b) specifically provides that a lease agreement, irrespective of its form, is not a credit agreement. 

In the instance where a lease agreement – more specifically a notarial lease agreement – is intended to be registered, one may not be faulted in concluding that the consent of the other spouse is required. However, the Deeds Office Registrars issued a Registrars' Conference Resolution 19/2018 resolving that no consent in terms of section 15 of the Matrimonial Property Act is required before one of the spouses, married in community of property, enters into a notarial lease agreement.

In essence, one of the spouses married in community of property may, without the consent of the other, enter into a lease agreement as well as a notarial lease agreement to be registered without the consent of the other spouse. Does the same hold true when a registered notarial lease agreement is ceded by the spouse in whose name it is registered?

The definition of "immovable property" in the Deeds Registries Act 47 of 1937's includes registered long-term leases. One of the spouses in a marriage in community of property may enter into a long-term notarial lease agreement alone and without the consent of the other, and once it is registered it will be regarded as immovable property. As such, once regarded as immovable property, by operation of the law, it forms part of the joint estate. Section 15(2) of the Matrimonial Property Act provides that no spouse, married in community of property, shall without the consent of the other spouse alienate rights in "immovable property" forming part of the joint estate. Should one of the spouses wish to cede their rights in the registered notarial lease, then the written consent of the other spouse will be required, because cession of a registered long-term lease will be regarded as alienating "immovable property", which the Matrimonial Property Act does not legally permit without written consent of the other spouse.

A spouse may, on their own, enter into a lease agreement and a notarial lease agreement, with a registered long-term notarial lease agreement becoming immovable property on registration, but cannot alienate it without the consent of the other spouse. In practice conveyancers and notaries always insist that a spouse consent to the other spouse entering into a notarial lease agreement, even though it is not legally required, especially when such an agreement is to be registered. Insisting that the other spouse consent becomes all the more important when a notarial lease agreement is to be bonded simultaneously with its registration.  Section 8(4)(d) of the National Credit Act provides that an agreement, irrespective of its form, constitutes a credit transaction and therefore a credit agreement if it is a mortgage agreement or secured loan.


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