Can one party in a marriage in community of property bind the joint estate without the consent of the other party to the marriage?
In Gounder v Top Spec Investments (Pty) Ltd, the Supreme Court of Appeal has confirmed the binding nature of marriages in community of property, even in cases where one partner is not aware of the liabilities the other partner incurs.
Kamintha Gounder argued that she was not bound by a loan agreement worth R1.14m because she was not aware that her husband entered into it. The Court held that section 15(1) of the Matrimonial Property Act grants one partner the authority to contract without the permission or knowledge of the other.
This section prohibits, inter alia, the alienation or mortgaging of immovable property forming part of the joint estate without the consent of the other party to the marriage in community of property. The court found that a loan was not caught by this section.