Family Law– LPFA 3532

Unit 5: Consequences of Civil Marriages

Part 2 : Variable Consequences – Marriage in
COP
Lecturer: Mrs A. L. Zender
16 August 2021
Unit 5: Consequences of Marriage:

5.1 Invariable consequences of marriage (covered last week)

Analyse the cases of van Wyk v van Wyk (I 3793/2012) [2013]
NAHCMD 125 (14 May 2013) and Sibonga v Chaka and Another
[2016] NASC 16, comparing and contrasting the ratio decidendi and
decisions thereof.

5.2 Variable consequences of Marriage

5.1 In community of property (in COP
5.2 Out of community of (Out of COP)
5.1 Marriage in Community of Property (in
COP)
By the end of this lesson, you should be able to:

• define community of property;

• identify the instances when community of property will
not automatically arise;
• describe the content of community of property; and
• explain how the joint estate is administered.
Introduction
• The presumption is that if spouses in Namibia conclude a
marriage south of the red line, such a marriage is in
community of property (in COP).
• This presumption is however rebuttable.
• Generally, the assets and debts of spouses married in
community of property are merged into one joint estate
whether obtained before or after conclusion of the marriage.
• That joint estate belongs to the spouses in undivided and
indivisible half-shares to which they have tied co-ownership.
• All debts incurred before and after the marriage become common at
the conclusion of the marriage.
• The spouses may however also have private estates which do not
form part of the joint estate.

H W Debts
Debts and + and = = 1
assets assests
 1. Instances where Community of Property will
not arise
Although all marriages are deemed to be in community
of property, there are instances in which community of
property will not automatically arise. These are:
• When there exists a valid marriage contract which
excludes community of property;
• When the law of the matrimonial domicile of the
parties determine that the marriage is automatically
out of community of property;
• Marriages north of the red line are automatically out of community
of property unless the parties make a declaration that the marriage is
in of community of property or they have executed a valid ante-
nuptial agreement;
• Native Administration Proclamation of 1928:
• Where can one make the declaration? North / South of red line
(police Zone) – The inference is only North. If you get married South
of the red line the marriage is automatically in COP.
• Where a minor enters into a marriage without the required consent
and the marriage is annulled, the court will divide the assets of the
parties as though they were married out of community of property.
 2. Content of Community of Property
1. Joint assets
• All assets of the spouses whether acquired before or after the
conclusion of the marriage form part of the joint estate.
• This ownership rests in the spouses by operation of the law.
• There is therefore no need to register any property in the name
of the parties.
• The Deeds Registries Act 47 of 1937 however requires that
immovable property must be registered at the Deeds Office in
the names of both spouses (Section 17(1). New Deeds Registries
Act of 2015 (Section 12( 1).
2. Assets that do not form part of the joint estate
• There are certain assets that do not form part of the joint estate these are:
• Assets excluded by virtue of the marriage contract and placed in a
separate estate which holds excluded assets. Any fruits of an excluded
asset forms part of the joint estate but if such asset is sold, the
proceeds from the sale form part of the separate estate.
• Assets excluded by will or deed of donation. The position is the same
with regards to fruits and proceeds of the sale as that of assets
excluded by contract.
• Assets that are subject to a fideicommissum fall outside of the joint
estate, as well as assets to which a spouse has a right of usufruct over
but do not own.
• Fideicommissum - A gift or benefit held on behalf of another until such
time that a third may obtain the gift or benefit.
• The engagement ring; gifts given as a token of affection of the
parties; as well as gifts given after consummation of the marriage do
not form part of the joint estate.
• Any satisfaction and damages received by a spouse married in
community of property does not fall within the joint estate, whether
or not obtained from the other spouse unless such damages are for
non-patrimonial loss.
• If a spouse is awarded costs against the other spouse and such
marriage is not dissolved, the award does not form part of the
joint estate
• The clothing of spouses does not form part of the joint estate.
• Any donations given between spouses will fall into the
separate estate.
• Any assets bought to replace any of the above-mentioned will
also not form part of the joint estate.
• 3. Joint debts
• Spouses married in community of property share in each other’s debts
whether such debts are incurred before or after conclusion of the marriage.
• The source of pre-marital debt is irrelevant; they can be contractual, delictual
or arising out of a maintenance obligation.
• Post-marital debts that arise out of contract will however only be settled from
the joint estate if the party who contracted had the capacity to bind the joint
estate.
• The separate estate may not be attached for the private debts of the other
spouse, but if it does happen, then the owner of that private estate has
recourse against the joint estate upon dissolution of the marriage.
3. Administration of the Joint Estate
• With the advent of the Married Persons Equality Act and the
abolishment of marital power, husbands and wives have equal
capacity to dispose of the assets of the joint estate; contract for
debts for which the joint estate is liable and to administer the joint
estate.
• The capacity of a spouse to act as set out in Section 5 of the Married
Persons Equality Act 1 of 1996 with regards to the administration of
the joint estate is limited in that they have to obtain consent from
each other.
• 1. Consent of spouses
• Section 7 of the Married Persons Equality Act (MPEA) OF 1996 provides
that a spouse may not perform the following acts without the consent of
their spouse:
• alienate, mortgage, burden with a servitude or confer any other real right in any
immovable property forming part of the joint estate;
• 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;
• alienate, cede, or pledge any shares, stocks, debentures, debenture bonds,
insurance policies, mortgage bonds, fixed deposits or similar assets, or any
investment by or on behalf of the other spouse in a financial institution, forming
part of the joint estate;
• alienate or pledge any jewellery, coins, stamps, paintings, livestock,
or any other assets forming part of the joint estate and held mainly
as investments;
• alienate, pledge, or otherwise burden any furniture or other effects
of the common household forming part of the joint estate;
• 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;
• as a purchaser enter into a contract as defined in the Sale of Land
on Instalments Act, 1971 (Act 72 of 1971), and to which the
provisions of that Act apply;
• bind himself or herself as surety;
• receive any money due or accruing to that other spouse or the joint estate by
way of:
• remuneration, earnings, bonus, allowance, royalty, pension or gratuity by
virtue of the other spouse's employment, profession, trade, business, or
services rendered by him or her;
• compensation for loss of any income contemplated in subparagraph (i);
• inheritance, legacy, donation, bursary or prize left, bequeathed, made or
awarded to the other spouse;
• income derived from the separate property of the other spouse;
• dividends or interest on or the proceeds of shares or investments in the
name of the other spouse; or
• the proceeds of any insurance policy or annuity in favour of the other
spouse; or
• 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.
• The Act also makes provision that, for acts that do not necessarily
require written consent, ratification may be made within a
reasonable time after the performance of the act concerned.
• The capacity of a spouse to act may also be suspended.
• Where a spouse acts without consent, a bona fide third party will be
protected and such transaction will be deemed as though it were
entered into with the necessary consent.
• If a spouse who acted in bad faith and the joint estate suffers a loss,
an adjustment will be made in favour of the innocent spouse upon
dissolution of the marriage.
• If a spouse married in community of property withholds
the consent required in terms of section 7 or 9 or if that
consent cannot for any other reason be obtained, a court
may on the application of the other spouse give that
spouse leave to perform the act in question without the
required consent if the court 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.
• A court may, on the application of a spouse, if it is satisfied that it is
essential for the protection of the interest of that spouse in the joint
estate, suspend for a definite or indefinite period any power that the
other spouse may exercise in terms of this Part, either in general or in
relation to a particular act as the court may specify in its order.
• A spouse who feels the other is acting unreasonably towards the joint
estate may in terms of common law apply for an interdict against
such spouse or have them placed under curatorship in order to
protect the interests of the joint estate.
• Alternatively, the estate can also be divided but the marriage stays
intact.
2. Capacity to litigate
• A spouse married in community of property shall not institute legal
proceedings against another person or defend legal proceedings
instituted by another person without the consent of their spouse.
• The only exceptions are that if the legal proceedings are in relation to
the spouse’s separate property; or for the recovery of non-
patrimonial damages against them; and the legal proceedings are in
relation to the profession, trade or occupation.
• If a spouse institutes or defends legal proceedings without the
necessary consent of their spouse, a third party may not rely on
this want of consent to challenge the validity of legal proceedings.
• If parties need to cover debts, and wants to apply for a surrender
of their estate, then such application must be done jointly. Where
sequestration of an estate is instituted, it is so done against both
spouses.
• Community of property will terminate at the death of one or both
spouses; divorce; or subsequent division of the joint estate.
Readings for next class
 Question on two cases relating to invariable consequences of
marriage
• Analyse the cases of van Wyk v van Wyk (I 3793/2012) [2013]
NAHCMD 125 (14 May 2013) and Sibonga v Chaka and Another
[2016] NASC 16, comparing and contrasting the ratio decidendi and
decisions thereof.
 Questions on IN COP
• How can the presumption that all civil marriages in Namibia are in
community of property be rebutted.
• How is the administration of the joint estate carried out?
Thank You