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Spouse's liability for debt

Section 15(1) of the Matrimonial Property Act lays down that a spouse married in community of property can perform any juristic act with regard to the joint estate, without the consent of the other spouse, except such juristic acts as are specifically excluded by the Act.

In terms of the Act, joint consent is required for transfer of fixed property and surety for example. These are juristic acts which are considered to be so important that unilateral action could lead to serious friction. One would expect spouses in a harmonious marriage to consult each other in regard to these acts.

Section 17(5) provides which spouse should be sued when a debt is recoverable from the joint estate. For this type of debt, either both spouses jointly or else only the spouse who incurred the debt, may be sued. The spouse who was not responsible for the debt cannot be held solely liable therefor, except where such debt was incurred for necessaries for the joint household.

In Maharaj v Sanlam Life Insurance Ltd and Others [2011] 2 A11 SA 571 (k2D) the applicant claimed payment of the proceeds of an insurance policy underwritten by the first respondent, the insurer, Sanlam. Sanlam alleged that there had been set-off of the debt on the basis that the applicant was indebted to it for her share of a debt incurred by her ex-husband during their marriage. They were married in community of property.

A broker's contract had been concluded in 2007 between the applicant's ex-husband and the insurer. The policy plan had been issued by the insurer in favour of the ex-husband, but a number of the policies were then allowed to lapse. That gave rise to a claim for commission by the insurer. The applicant was divorced in 2009.

By then the insurer had sold and ceded its claim against the applicant's ex-husband to a third party. In terms of an amendment to the divorce order, the applicant's ex-husband ceded two policies to the applicant. His estate was subsequently sequestrated. The third party ceded the claim against the applicant's ex-husband back to the insurer. The applicant alleged that she did not consent to her ex-husband's entering into the broker's contract or to incurring the debt.

The court looked at Section 15(1) of the Matrimonial Property Act and found that the applicant's consent to the contract was not required for holding her liable for a debt incurred by her ex-husband.

The court then looked at Section 17(5) of the Matrimonial Property Act. The court found that the debt in this case was incurred in the course of the applicant's husband's earning an income for the joint estate in the ordinary course of his business. Thus the applicant was jointly liable.

The court also considered the first respondent's entitlement to invoke set-off. In order for these to be set-off, the insurer had to prove the indebtedness of the applicant to it, that the insurer's debt was due and legally payable, that both debts were liquidated debts and that the reciprocal debt was owed by the applicant to the insurer. The latter requirement was not met and the defence of set-off was dismissed. The applicant's claim was allowed.

Related Articles

Marriage in community of property

Divorce & division of the estate

Debt Review and divorce

Property in your spouse's name


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