n Stellenbosch Law Review = Stellenbosch Regstydskrif - Clarifying protection of spouses married in community of property? [discussion of 2010 1 SA 521 (WCC) and 2000 1 SA 383 (T)]

Volume 22, Issue 2
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



This contribution examines section 15 of the Matrimonial Property Act 88 of 1984 with reference to two recent cases: 2010 1 SA 521 (WCC) and 2000 1 SA 383 (T). Section 15 is designed to protect the patrimonial interests of spouses married in community of property by requiring the consent of both spouses for certain transactions involving joint property. The contribution analyses the effectiveness of section 15 as used by the courts, and argues that section 15 does offer useful protection in certain circumstances. In both of the cases under discussion, the plaintiffs succeeded in recovering assets that had been alienated from the joint estate without the required consent. However, the courts did not identify the precise legal mechanisms of recovery. The contribution considers several possible mechanisms for redress including the and other vindicatory actions; undue enrichment remedies such as the and the ; delictual remedies based on fraud or theft (the ); and the .

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