Marriage in community of property and suretyships.

Marriage in community of property and suretyships.

Since the introduction of the Matrimonial Property Act of 1984 (the Act), spouses married
in community of property share the same rights regarding the disposal of the
assets of the joint estate (the combined assets of both spouses), the
contracting of debts which lie against the joint estate and the management of
the joint estate, subject to certain limitations. An example is a restriction
on signing a suretyship on behalf of the joint estate.
If one spouse wants
to incur credit on behalf of the joint estate, the credit provider may insist
that the spouse binds himself or herself as surety, to guarantee payment.
The Act provides that the spouse shall not bind
himself as surety without the written consent of the other spouse, but
sets out a proviso: should a suretyship be provided in the
ordinary course of a person’s business then such a suretyship is deemed valid
even if spousal consent was not given.
What constitutes ‘in the ordinary course’ of that spouse’s
business?
the Supreme Court of Appeal
(SCA) was asked to answer this question in the case of Ockie Strydom v Engen Petroleum Limited (184/2012) [2012] SCA:
Is a spouse bound by a suretyship even though he/she was unaware that his/her
spouse had signed one? Or even if a spouse refused to give written consent?
The SCA had to decide what constituted
acting in the ordinary course of one’s profession, trade or business. It found
that the determination of whether a person acted in the ordinary course of
his/her business was a question of fact that must be judged objectively with
reference to what was expected of a businessman/businesswoman. For example, if
you are a salaried employee and want to buy a car on lease, signing a
suretyship will not be in the course of your ordinary business, and your spouse
must consent in writing.
The opposite would apply if you
are involved in a business such as a company, close corporation, partnership or
trust, and have a commercial interest in the business’ success or failure. In this
case, you can sign a suretyship and bind the joint estate, even if your spouse
did not consent to the suretyship in writing. Thus, no consent is required to
sign as surety, despite being married in community of property, as you signed
the suretyship in the ordinary course of your business.

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