In community PT 2

Question 1

What are the subsections of the system of equal control?

Answer 1

1. Spouse’s capacity to act
2. Spouses’ capacity to litigate
3. Protective measures for spouses and third parties.

Question 2

What does section 14 of the matrimonial property Act says?

Answer 2

Section 14 of the Matrimonial Property Act states that, in a marriage in community of property, both spouses have equal legal powers to manage the joint estate. This includes selling or disposing of assets, entering into contracts, and taking on debts that affect the joint estate. A wife now has the same authority to deal with the joint estate as a husband had before the Act came into effect.

Question 3

What are the two elements of equal control?

Answer 3

1. Independent management
2. Joint management

Question 4

What is it meant by independent management?

Answer 4

These are the acts which may bind the joint estate and which one spouse can perform without the consent or informing the other spouse.

Question 5

What does S15 (6) says?

Answer 5

Section 15(6) states that if a spouse is doing something as part of their normal job, business, or profession, they don’t need to ask their partner for permission—even if it affects their shared (joint) property.

Question 5

What does Section 15(1) say?

Answer 5

Either spouse can perform any juristic act not listed in S15(2) & (3) without the consent of the other spouse. Eg,

Question 6

which case can be referenced for an independent estate S15 (6)

Answer 6

Absa v Goede

Question 7

What is meant by joint management?

Answer 7

This type of management requires the consent of both spouses for certain specified juristic acts.

Question 8

Why is the consent of both spouses needed?

Answer 8

According SPA to protect spouses as they otherwise would be vulnerable to suffering financial loss in the event of their partner making ill-judged or profligate decisions in relation to their financial affairs.”

Question 9

Where does the purpose come from?

Answer 9

Strydom NO v Engen Petroleum Ltd

Question 10

Types of consent?

Answer 10

1. Oral/Tacit
2. Written
3. Written consent with 2 attested competent witnesses
4. Prior written consent with 2 attested competent witnesses

Question 11

When is the oral/tacit consent needed?

Answer 11

selling or giving away household effects

Question 12

When is the written consent needed?

Answer 12

Withdraw money from the other spouse’s account

Question 13

When is the written consent with 2 witnesses needed?

Answer 13

Receiving credit in terms of National credit Act

Question 14

When is the prior written consent with two witnesses needed?

Answer 14

1. When the act burdens immovable property and require registration from the registrar of deeds
2. Suretyship
   Ratification is not possible in these two instances.

Question 15

What are the consequences if the consent is not given?

Answer 15

The juristic act is void. The exception is when the Act is in terms of S15(6) of the Matrimonial Property Act.

Question 16

How can ratification takes place where consent from the other spouse was needed?

Answer 16

1. Within a reasonable time.
2. According to the type of consent required.

Question 17

What happens if the other spouse ratify and when they don’t?

Answer 17

1. The act becomes valid with retrospective effect, and if they don’t ratify, it will remain null and void.

Question 18

What is it mean by to litigate?

Answer 18

To act in legal proceedings, to sue or be sued.

Question 19

What does Section 17 of the Matrimonial Property Act say?

Answer 19

A spouse who wants to institute or defend legal proceedings against a THIRD PARTY requires WRITTEN CONSENT from the other spouse to do so

Question 20

What are the cases in which the other spouse’s consent is not needed in terms of litigation?

Answer 20

1. Spouses’ separate property.
2. Damages for non-patrimonial loss, a delict committed against the spouse
3. matters including Trade, business, profession
4. Matrimonial disputes (including children from a previous marriage.

Question 21

What happens if the consent to litigate is not given when needed?

Answer 21

1. A spouse who failed to get consent can’t avoid legal obligations by blaming the other spouse for withholding consent. (Court order)

Question 22

What happens in case of division of the joint estate if the other spouse’s actions burdened the joint estate?

Answer 22

The court will exercise discretion.

Question 23

Which spouse should be sued in respect of a debt that is recoverable from the joint estate?

Answer 23

Section 17(5) of the Matrimonial Property Act:
1. Both of them can be sued or the person who is responsible for the debt.
2. The innocent party cannot be sued alone, UNLESS the debt was incurred for HOUSEHOLD necessities for the JOINT HOUSEHOLD.
3. If it’s from the separate estate, the person responsible for it should be the one to suffer the consequence

Question 24

Which section protects third parties in terms of litigation between them and the joint estate partners?

Answer 24

Section 15(9) of the matrimonial property act

Question 25

What does S15(9) of the Matrimonial property says?

Answer 25

It protects third parties who acted bona fide without knowing about the consent and relied on the act being valid by validating those acts in certain cases.

Question 26

In which instances can the act be regarded as valid to protect the third party even if the consent is not given by the other spouse?

Answer 26

1. If the 3rd party was NOT AWARE and could not REASONABLY have been aware that consent was required; 2. If he should have known, then it is asked whether he was unaware that the necessary consent was NOT, in fact, OBTAINED (reasonably so)

Question 27

What statutory remedies can be used to protect spouses from each other?

Answer 27

1. One spouse can ask the court to temporarily suspend the other spouse’s power to make decisions or enter into contracts affecting the joint estate. S16(2) 2. If one spouse refuses or unreasonably withholds consent needed for certain transactions, the other spouse can ask the court to allow the transaction anyway. S16(1) 3. claim adjustment when one party has suffered loss because of the other party, S15(9)b 4. Application to court for an immediate DIVISION of the joint estate. (Section 20)

Question 28

What is the goal of the adjustment?

Answer 28

To put the innocent” spouse in the position he or she would have been if the other spouse had not performed the transaction.

Question 28

What common law remedies can be used to protect spouses from each other?

Answer 28

These remedies are only based on fraud. 1. If one spouse fraudulently disposes of joint assets, the other spouse can claim compensation from them upon the dissolution of the marriage. 2. Actio Pauliana utilis 3. Interdict 4. Having a spouse declared a prodigal