Family Law PVL2601 Semester 1 Department of Private Law

Question 2 Mr and Mrs A got married in community of property three years ago. With the money they received as wedding gifts, they bought a stand on which they planned to build a house once they had saved enough money. A month ago, Mr A sold the stand to Mr X without Mrs A’s consent. Mr X met Mr A for the first time on the day that they entered into the contract for the sale of the stand. During their meeting, Mr X and Mr A discovered that they were distant cousins. When Mr X asked Mr A whether he was married in community of property, Mr A told Mr X that he was married out of community of property without the accrual system. Mr X also asked the owners of the neighbouring stands whether they knew if Mr A was married in or out of community of property. None of the neighbours knew which matrimonial property system applied in Mr and Mrs A’s marriage. Now, Mr A insists that the contract for the sale of the stand is void because he did not obtain Mrs A’s consent to the contract. Mr X wants to enforce the sale. Fully explain to Mr X whether the contract for the sale of the stand is valid. You must refer to legislation and case law in answering the question. PVL2601/201/1/2022 5 Answer Your answer was evaluated according to the marking rubric. Identifying the problem (1 mark: see rubric): This question deals with the protection of third parties where a spouse who is married in community of property enters into a transaction without the other spouse’s consent.(1) Relevant law (10 possible marks - maximum 7 marks: see rubric): In terms of the Matrimonial Property Act,(½) a spouse who is married in community of property needs the written consent of his or her spouse, attested by two competent witnesses, to enter into a contract to alienate immovable property which forms part the joint estate.(1) Section 15(9)(a)½ protects a bona fide third party OR a third party who does not know and cannot reasonably be expected to know that the other party’s spouse had to consent to the transaction or that the necessary consent was not obtained.(1) In such event, the transaction is deemed to have been entered into with the required consent OR the transaction is valid and enforceable.(1) Only the third party can invoke section 15(9)(a) OR spouses who did not comply with the consent requirement cannot invoke section 15(9)(a).(1) The Act does not state how it must be established whether the third party could reasonably have known that consent was required or not given.(1) In Distillers Corporation Ltd v Modise(1) the court held that the use of the word “reasonably” implies that an objective test must be used OR the matter must be considered from the point of view of the reasonable person in the third party’s position.(1) In Visser v Hull(1) the court held that a third party who is a blood relative of the spouse who sold immovable property without spousal consent must do more that rely upon the spouse’s assurance about whether or not he or she is married or what his or her matrimonial property system is OR the third party must undertake an adequate enquiry OR the third party must make enquiries from the spouse’s wife and children and/or from members of the close-knit local community in which the property is situated.(1) Application of the law to the facts of the problem (1 mark: see rubric): Since Mr X was bona fide and did not merely rely on Mr A’s statement that he was married out of community of property, the contract is valid.(1) NB: A mark was awarded for language, the use of tenses/syntax and formulation. (See the prescribed textbook pp 72, 75-77 and the study guide pp 36-37.)