Question

Mrs. Nel is married in community of property and concludes the following contracts without the consent of her husband. State whether or not each of the following contracts concluded by Mrs. Nel is valid and motivate your answer:

1.1 She cedes an insurance policy of her husband which formed part of their joint estate.

1.2 She mortgages their immovable property for a loan in respect of her business ABC Fashion House (the loan is necessary to acquire more stock).

1.3 She binds herself as a surety to First National Bank for a large outstanding debt of her favourite, adult son.

Answer 1

Getting married in community of property means you're liable for all debt incurred by your significant other (spouse) – even debt that was incurred before your wedding.

1.1 She cedes an insurance policy of her husband which formed part of their joint estate.

The contract is made without the consent of the husband. As per Family law, For alienating, ceding or burdening insurance policies, mortgage bonds, fixed deposits, shares, stocks or any of the other spouse’s investments at any financial institution, a Written consent from spouse is needed.

1.2 She mortgages their immovable property for a loan in respect of her business ABC Fashion House (the loan is necessary to acquire more stock).

For the above contract she should have obtained a written consent from her husband with two witnesses as per the Family law for the contract to be binding. The Family law states that for alienating immovable property, such as a house, townhouse or farm, belonging to the joint estate written consent with two witnesses should be obtained from spouse.

1.3 She binds herself as a surety to First National Bank for a large outstanding debt of her favourite, adult son.

As per the Family law the following act may only be performed with the prior written consent of the other spouse, signed by two witnesses:Entering into a contract of surety, where one spouse binds the communal estate as a surety for debt of a third party;

But here it was not done.

But in all these 3 cases the even though the spouse entered into contracts which required approval and consent from her husband, our law favours the rights of the third party with whom the spouse contracted.If the third party doesn’t recognize or can’t moderately have acknowledged that consent wasn’t given, then the group action is valid. The innocent spouse equivalent is, however, given some protection. Once the communal estate is split at the tip of the wedding, the court can build Associate in Nursing adjustment and also the innocent spouse equivalent are stipendiary consequently.