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are a number of transactions listed in the Act that does require the consent
of the other spouse, including certain formalities which may also need to be
complied with in order to evidence the consent.

For a number of the transactions listed in the Act, the consent of the other
spouse can be obtained after the act to ratify the transaction, provided such
consent is obtained within a reasonable period of time after the transaction.
But such ratification is not possible with all transactions such as for example
with the sale of immovable property or the entering into a contract of surety,
understandable given the important consequences for the joint estate of such
transactions. It is also clear from the Act that spouses married in community of
property are required to comply with the Act and ensure that the necessary
consents and formalities are met.
But where does this leave a third party contracting with a spouse married in
community of property?
The Act regulates this position by determining that when a spouse enters into a
transaction with a third party without the necessary consent and the third party
does not know (or cannot reasonably know) that the necessary consent has
not been obtained, it is deemed that the necessary consent has been given.
What this boils down to is a consideration of the interests of the parties and
the weighing up of the interests of the innocent spouse against the prejudice
the third party would suffer should the transaction be set aside or continue
(as the case may be). To benefit from the presumption provided for in the
Act, the actions of the third party are relevant. In instances where the third
party knew that the spouse who entered into the transaction did not act with
consent or should have reasonably known such (based on the facts at hand),
the third party will not be able to enjoy the protection of the presumption
and the transaction may be invalid for lack of consent. This translates into
a duty of enquiry for businesses - making it a prudent business practice for
any business that concludes transactions where consent would typically be
required to ensure that the necessary spousal consents have been obtained.
It does not mean that spouses married in community of property can ‘get out
of any contract’ by not having the consent of both spouses, as the Act is clear
in expecting such spouses to meet the letter of the law, but it does at the same
time not blindly protect a third party that should ‘have known better’ at the cost
of the innocent spouse.

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