Lecture 10 Flashcards
Content of universal community of property
1) ASSETS
2) DEBTS
Joint debts
General rule: Joint debts can be recovered from separate estates
or joint estate of the spouses (no particular order)
Debts
1) Debts incurred before conclusion of the union
2) Debts incurred after conclusion of the union
3) Co-debtors
Exceptions of Joint debts
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.
Spouses’ capacity to act
Concurrent
administration
1) Equal administration
2) Joint administration
Matrimonial Property Act
15. Powers of spouses
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
Kotze v Oosthuizen
Consent requirements only apply where both spouses are alive and are not applicable to executors of deceased
estates
Prior, written attested consent
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
Consent requirements
(a) Prior written attested consent
(b) Written attested consent
(c) Written consent
(d) Oral or tacit consent
Written attested consent
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
Oral (informal) or tacit consent
1) Selling furniture or other effects
of the common household.
2) Receipt of money due to other
spouse or joint estate
Written consent
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
Donations:
Depends if donation will unreasonably
prejudice the interest of the other
spouse
effect on the validity of that
transaction if non-compliance with consent requirement
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
Section 15(9)(a) of the Matrimonial Property Act:
Protection for a bona fide third party
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.