How to find a divorce lawyer in Cape Town, South Africa

Community of Property & instituting legal action

Prior to 1993 the husband in the marriage exercised “marital power” in a marriage in community of property. He therefore had control over the person and property of his wife. This clearly had to be rectified, as it is unconstitutional and discriminated in favour of the male in the marriage.

On 1 December 1993 the marital power was abolished. There is now no restriction on a wife’s capacity to litigate. Spouses married in community of property may not institute/defend legal proceedings without the written consent of the other spouse. Written consent is not however required in respect of litigation:

(i)between the spouses;
(ii)in respect of a spouse’s separate property;
(iii)for the recovery of damages, other than damages for patrimonial loss, suffered as a result of the commission of a delict against that spouse; and
(iv)in respect of a matter relating to his profession, trade or business.

I recently had a case where a man had bought a property overseas in his own name. The parties were married in community of property. The marriage did not work out and they returned to South Africa. The man was unable to pay the mortgage bond on the property and requested my legal opinion on the matter. The legal position is that if a debt is recoverable from a joint estate, the spouse who incurred the debt or both spouses together may be sued for the debts. In this case the creditor, being the bank, could therefore sue either the man or his wife or both parties for the recovery of the outstanding debt.

In the abovementioned example the bank would normally cite the one spouse as first defendant and the other as the second defendant. The bank would seek to obtain a judgment against each defendant, attach the property, and sell the property in execution at an auction as a last resort to recover the outstanding debt.

The phrase “locus standi in iudicio” is the legal phrase referring to whether a party has full legal capacity to litigate. It is essential when parties are married in community of property and they wish to sue somebody or defend an action to obtain the written consent of their spouse, as if they fail to do so, their legal action may be declared invalid.

Related articles

Should I advise my spouse of the impending divorce action?

Contracts when married in community of property.



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