Lecture 10

Question 1

Content of universal community of property

Answer 1

1) ASSETS
2) DEBTS

Question 2

Joint debts

Answer 2

General rule: Joint debts can be recovered from separate estates
or joint estate of the spouses (no particular order)

Question 2

Debts

Answer 2

1) Debts incurred before conclusion of the union
2) Debts incurred after conclusion of the union
3) Co-debtors

Question 3

Exceptions of Joint debts

Answer 3

1) S 19 of MPA
2) Spouse held liable for a delictual debt
3) Specific order of recovery
4) First recover from separate estate of debtor and if insufficient then from joint estate.
5) Provision for an adjustment at the division of joint estate if any amount was recovered from joint estate.

Question 4

Spouses’ capacity to act
Concurrent
administration

Answer 4

1) Equal administration
2) Joint administration

Question 5

Matrimonial Property Act
15. Powers of spouses

Answer 5

a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate
without the consent of the other spouse

Question 6

Kotze v Oosthuizen

Answer 6

Consent requirements only apply where both spouses are alive and are not applicable to executors of deceased
estates

Question 6

Prior, written attested consent

Answer 6

1) Transfer ownership of immovable
property.
2) Register a mortgage bond over
immovable property.
3) Signing as surety for debt of third
party.
4) Ratification (consent after the fact) is
not possible.
5) General consent not possible.
6) Exception: Ordinary course of
profession, trade or business

Question 7

Consent requirements

Answer 7

(a) Prior written attested consent
(b) Written attested consent
(c) Written consent
(d) Oral or tacit consent

Question 8

Written attested consent

Answer 8

1) Contract to sell immovable
property
2) Credit agreements
3) Ratification is possible.
4) General consent is not possible.
5) Exception: ordinary course of
profession, trade or business

Question 9

Oral (informal) or tacit consent

Answer 9

1) Selling furniture or other effects
of the common household.
2) Receipt of money due to other
spouse or joint estate

Question 9

Written consent

Answer 9

1) Selling shares
2) Other assets mainly held as an
investment
3) Ratification is possible.
4) General consent is possible.
5) Exception: ordinary course of
profession

Question 10

Donations:

Answer 10

Depends if donation will unreasonably
prejudice the interest of the other
spouse

Question 11

effect on the validity of that
transaction if non-compliance with consent requirement

Answer 11

1) MPA is silent on the consequences.
2) ABSA v Lydenburg Passenger Services
= act contrary to consent
the act is void
3) Result: If asset transferred it can be reclaimed

Question 11

Section 15(9)(a) of the Matrimonial Property Act:
Protection for a bona fide third party

Answer 11

1) Spouse enters into transaction with third part contrary to consent requirements
2) third party does not know and cannot
reasonably know that transaction is contrary to consent requirements
3) transaction is deemed to have been
entered into with required consent.

Question 12

Section 15(9)(b) of the Matrimonial Property Act:
Protection for spouse whose consent was required

Answer 12

1) Spouse who enters into transaction knows or ought reasonably to know that he will probably not obtain consent required from other spouse
2) Joint estate suffers a loss as result of the transaction
3) An adjustment must be effected in favor of the other spouse upon division of the joint estate

Question 13

Protective measures

Answer 13

Section 16(1) of the Matrimonial Property Act:
1) Protection for spouse if consent is withheld unreasonably or cannot be obtained for a good reason
2) Section 16(2) of the Matrimonial Property Act: Can suspend power definitely or indefinitely
3) Section 20(1) of the Matrimonial Property Act:
Division of the joint estate during existence of the marriage

Question 14

What if the spouse does not have the
necessary consent?
Effect against third parties

Answer 14

1) Cannot be challenged by third party for want of consent
2) Costs to be recovered from separate estate of spouse

Question 15

Spouses’ capacity to litigate

Answer 15

General rule:
Spouses need WRITTEN CONSENT

Question 16

Exceptions to the General Rule

Answer 16

1) Separate estate;
2) Recovery of damages in case of a delict
3) Profession, business or trade
4) Institute matrimonial litigation
5) Children from a previous marriage

Question 17

Termination of community of property

Answer 17

1) Death
2) Divorce
3) An order for division in terms of s 20
4) A change in the matrimonial property system in terms of s 21.