Selling Joint Property Without Spousal Consent

In J.G.S v S.E.S and Others (A283/2024) [2025] ZAWCHC 543, the Western Cape High Court was required to resolve a deadlock over the sale of a jointly owned family home between spouses engaged in divorce proceedings. The judgment provides clarity on when a court may step in under the Matrimonial Property Act 88 of 1984 and authorise the sale of immovable property despite one spouse’s refusal to consent to the sale.

The parties were married in community of property with all their assets and liabilities forming part of one joint estate. As financial pressure mounted and bond arrears accumulated, the husband sought to sell the property through a private sale to avoid a forced sale or auction by the bank. However, the wife refused to consent to the sale of the property, resulting in the matter ending up in court and an initial ruling that stopped the sale.

On appeal, the decision was overturned and relief granted under section 16(1) of the Matrimonial Property Act. While section 15(2)(a) of the Act prohibits a spouse from alienating immovable property without the written consent of the other spouse, section 16(1) empowers a court to authorise the alienating of immovable property even if one spouse refuses to consent provided the consent is unreasonably withheld.

The court emphasised that the test under section 16(1) is fundamentally concerned with reasonableness. Consent will be regarded as unreasonably withheld where there is no rational basis for refusing it in the circumstances, where the refusal frustrates the protection and proper administration of the joint estate, and where the spouse seeking the order can show that granting it would be fair and equitable.

Applying this test, the court considered the financial realities facing the joint estate. The evidence demonstrated that the property was heavily burdened by debt and at risk of being sold on auction by the bank, a process likely to result in a significant loss of value. On the other hand, a genuine private offer existed that would result in a better financial outcome.

The wife’s opposition to the sale was not supported by objective or persuasive evidence. She failed to demonstrate how withholding her consent would protect the joint estate or produce a better financial outcome. In the absence of any viable alternative, her refusal served no legitimate purpose and merely prolonged the estate’s financial deterioration.

The court concluded that the wife’s consent had been unreasonably withheld. The husband was accordingly authorised to proceed with the sale of the property, and the wife ordered to take all steps and sign all documentation necessary to give effect to the transfer, waving the requirement of her consent if required.

This judgment highlights the practical and legal complexities that can arise when immovable property forms part of a joint estate, particularly in the context of marital breakdown and financial distress. While the law requires spousal consent to protect shared interests, it also recognises that unreasonable refusal can place the entire joint estate at risk.

This case also highlights the importance of obtaining sound legal and conveyancing advice at an early stage for all homeowners and creditors.

Property transactions involving joint estates require careful legal guidance to ensure compliance with the Matrimonial Property Act while protecting value and avoiding costly delays and disputes.

At Snymans Inc., we have extensive experience assisting clients with property transactions affected by divorce, joint estates, and consent-related disputes. We provide clear advise and ensure that the transfer is concluded lawfully, efficiently, and in a manner that safeguards the interests of all parties involved.

Written by: Maret Carroll
Moderated and approved by: Rohula Kgabu

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