key to the study guide - Name

Debts incurred during
the subsistence
of the marriage
Concerning the discussion on pages 75±76 in your textbook on debts
incurred during the subsistence of the marriage, you must first of all
distinguish between contractual debts, delictual debts and other separate
debts.
Contractual debts You will see on page 75 in your prescribed textbook that a contractual
debt can be recovered from the joint estate if the spouse who incurred the
debt had the capacity to incur such debt. The consequences of a
transaction concluded by a spouse who did not have the capacity to incur
the debt are discussed in the next study unit.
Delictual debts Regarding delictual debts, you must note very carefully the provisions of
section 19 of the Matrimonial Property Act 88 of 1984 which are
explained in your textbook on page 75.
Delictual liability of
spouses inter se (ie
as against one another)
Other separate
debts
Debts unpaid at
dissolution of marriage
In respect of the discussion of debts incurred during the subsistence of the
marriage, you must further note on page 75 of your textbook that spouses
married in community of property cannot hold each other liable for
damages in delict (ie for compensation for patrimonial loss, eg damage to a
motor vehicle, medical expenses and loss of income, etc). In terms of
section 18(b) of the Matrimonial Property Act one spouse may, however,
sue the other for satisfaction for bodily injuries caused either partially or
wholly by the other spouse (satisfaction is compensation for nonpatrimonial
loss, ie, damage which affects your person and not your
patrimony, eg pain and suffering, personality infringement, etc). Note that
the provisions of section 19 is also applicable here.
It is further submitted in your textbook on page 76 that section 19 of the
Matrimonial Property Act 88 of 1984 should be extended to cover
criminal fines and a spouse's maintenance obligations towards his or her
parents, siblings, extra-marital children, and children from a previous
marriage.
Lastly, in respect of joint liabilities, you must note the way in which joint
debts, which have not yet been settled when the joint estate is dissolved,
must be recovered from the spouses. You will note in your textbook on
pages 76±77 that here a distinction is to be drawn between contractual
debts, and delictual or other separate debts of the former spouses.
Contractual debts Please note that in respect of contractual debts a further distinction is
made, namely between contractual debts incurred before the marriage and
contractual debts incurred during marriage.
Delictual and other
separate debts
You should note that delictual and other separate debts which are still
outstanding when the marriage has been dissolved, can be claimed only
from the spouse who originally incurred the debt, and if that spouse pays
the debt, he or she has no right of recourse against the other spouse.
ACTIVITY
Draw a diagram of the rules which apply in respect of debts outstanding
upon the dissolution of the joint estate.
101