key to the study guide - Name

FEEDBACK
CIRCUMSTANCES CONSEQUENCES OF
TRANSACTION
Third party does not know, or
cannot reasonably know, that consent
is required from the person's
spouse or that the requisite consent
has not been obtained
Third party knows or should reasonably
know that consent is required
from the person's spouse and
that this consent has not been
obtained
5.2 Protection of the spouses inter partes
Transaction valid and enforceable
by third party in terms of section
15(9)(a) of the Matrimonial Property
Act 88 of 1984, as consent is
deemed to have been given
The Act is silent on the consequences
of the transaction. It seems
that the transaction is null and void
in terms of case law: Amalgamated
Bank of South Africa Bpk v Lydenburg
Passasiersdienste; Bopape v Moloto
There are various remedies which one spouse may use against the other
when
(1) the latter concludes a transaction with a third party without obtaining
the necessary consent
(2) the latter's consent cannot be obtained, or the latter unreasonably
withholds consent
(3) the latter's conduct seriously prejudices the interests of the other
spouse in the joint estate in another way
The following remedies are discussed in your textbook on pages 83±85 in
respect of these circumstances:
(1) application in terms of section 15(9)(b) of the Matrimonial Property
Act for an adjustment upon division of the joint estate
(2) application for authorisation of the transaction by the court when the
required consent cannot be obtained or is being unreasonably
withheld
(3) application for suspension by the high court of any power which a
spouse may have over the joint estate in terms of the Matrimonial
Property Act, for a definite or indefinite period
(4) application in terms of section 20 of the Matrimonial Property Act for
immediate division of the joint estate
(5) application for the common-law interdict to prevent the other spouse
from proceeding with a transaction (which affects the joint estate)
(6) application for the common-law right of recourse
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