Die status van afsonderlike goed van 'n gade getroud binne gemeenskap van goed in gevalle van sekwestrasie en aansprake van krediteure van die gemeenskaplike boedel

Abstract

Where parties are married in community of property, debts are incurred by the parties and not by the joint estate. Each spouse is liable for debt incurred by either spouse. A creditor is, therefore, entitled to claim from joint estate of both spouses (as co debtors). Such an estate includes not only the spouse's undivided interest in the joint estate but also any and all separate property that falls outside the joint estate. Once the joint estate is sequestrated, both spouses become "insolvent debtors" and consequently the property (including separate property) of both spouses is available to creditors. The lnsolvency Act, as opposed to the Matrimonial Property Act, makes no provision for the recognition or sequestration of 'separate property". Although an estate is sequestrated, it is the debtor who is insolvent. A debtor (married in community of property) who possesses "separate property" is on sequestration of the joint estate insolvent in relation to both his or her undivided interest in the joint estate as well as any "separate property". But is this correct? Ample provision is made by various statutes for the exclusion of certain property from an insolvent estate. Does this not mean that a debtor might be insolvent in relation to one estate and not insolvent in relation to the other? The estate of a partnership is, for purposes of sequestration, deemed to be a separate entity from the partners' private estates. Where the partnership fails, creditors first have recourse against the estate of the partnership where after any shortfall may be claimed from the private estates of the partners. Although the estates of partners are sequestrated simultaneously with the estate of the partnership, creditors of the partnership may not proof their claims against the estate of a partner and vice versa. Is it just and equitable that a spouse who owns separate property is treated differently from a partner who does not possess a separate estate in law from the partnership estate? A partner only has one estate - a private estate that includes his or her interest in the partnership. It is concluded that despite the judgment of the Supreme Court of Appeal in Du Plessis v Pienaar, a sense of dissatisfaction still prevails regarding the status of separate property. It is furthermore suggested that in view of the lack of provisions in the insolvency Act regarding separately owned property, the said Act be amended to provide for the specific exclusion of separate property from an insolvent joint estate. It is more advisable to provide for the exclusion of separate property from the insolvent joint estate than to provide for the simultaneous sequestration thereof.