key to the study guide - Name

Requirements: (a) The court should be convinced that the interests in
thejointestate,ofthespousewhoappliestoit,are
being seriously prejudiced or will probably be
seriously prejudiced by the conduct or proposed
conduct of the other spouse.
(b) The court should be convinced that no other
person will be prejudiced by the order.
(5) Common-law interdict.
Requirements: (a) One spouse must threaten to alienate an asset
from the joint estate Ð the alienation must
therefore not yet have been completed.
(b) The spouse who intends to alienate an asset of the
joint estate must do so with the intention of
prejudicing the other spouse.
(c) The party who applies for the interdict will suffer
loss if the interdict is not granted.
(d) No other remedy (ie the right to adjustment ito s
15(9)(b) of the Matrimonial Property Act) should
be available.
(6) Common-law right of recourse.
Requirements: (a) Assets of the joint estate should already have been
alienated by the guilty spouse.
(b) The guilty spouse should have alienated the assets
in fraud of the other Ð in other words the
transaction must have been concluded with the
intention to defraud the other spouse; it must not
just be an unwise transaction.
(7) The actio Pauliana utilis.
Requirements: (a) Assets of the joint estate should already have been
alienated by the guilty spouse.
(b) The spouse who alienated the assets should have
done so with the intention of defrauding the other
spouse.
(c) In terms of the Laws case it is further required that
it must also be proved that the third party, when
entering into the transaction, was aware that the
disposal of the assets was in fraud of the other
spouse's rights. According to Cronje andHeaton
this view is incorrect.
(d) It is uncertain whether this remedy is available
during the subsistence of the marriage while the
joint estate remains undivided, or whether the
action can only be brought after dissolution of the
joint estate.
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