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

Marriage in community of property & loans

"My wife lent a car to a friend. We are married in community of property. Is this a valid agreement of loan?"

A couple consulted me recently who found themselves to be in a serious predicament. They were married in community of property. While the man was away on business, his wife had loaned an expensive car to a friend of theirs. He had not been party to any of the agreement.

The couple were quite well off and owned a few motor vehicles. This particular vehicle was valued at approximately R450 000, and there was still R90 000 owing on it. The vehicle had been loaned out a year ago. The agreement was that it would be loaned out for three months only. The person who lent the vehicle had told them that he was dying from a tumour and had only three months to live.

My clients in short, claimed that they had been "conned" into loaning out the vehicle. In addition to the vehicle they had paid about R100 000 to the person who lent the car, and who kept phoning for money. He was a long term friend of theirs, who they thought they could trust.

I advised my clients to open a criminal charge of unlawful use of the vehicle against the suspect. They did this. The vehicle and suspect were in Gauteng. Cape Town court would however have jurisdiction, as the agreement between the lady and the suspect was in Cape Town, and the handing over of the vehicle furthermore took place in Cape Town.

I furthermore advised my clients simultaneously to launch an urgent court application and a civil case against the suspect for the vehicle to be returned. The vehicle was registered in the name of the husband.

The suspect was alleging that the vehicle had been given to him as a gift, and had evidence of emails where the wife had given him permission to use the vehicle. He wanted to remain in possession of the car, even though my clients were paying a monthly debit of R8000 on the vehicle and weren't enjoying the use thereof.

One of the main legal points for consideration in this case was whether a wife married in community of property to her husband can without his written consent loan a vehicle registered in his name to a third party. The answer is no.

There was never any valid legal agreement of use in the first place as the couple had jointly consented to the loaning out of the vehicle. The suspect therefore had to return the vehicle to the couple. He was in unlawful possession of it.

Related articles

Should I advise my spouse of the impending divorce action?

Entering into legal proceedings in Community of Property marriages.

Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993



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