key to the study guide - Name

Section 17(1) of
Act Ð instituting
legal proceedings
Section 17(4) of Act
Ð application for
sequestration
against both
spouses/application
for surrender of
joint estate by both
spouses
Section 17(5) of
Act Ð liability of
spouses for debts of
joint estate
114
Nel case: the action can be instituted
only after dissolution of the marriage.
Reyneke case: it seems illogical to grant
this right to the innocent spouse,
but to delay the ability to enforce it
until dissolution of the joint estate
by which time the right may be
useless.
Cronje and Heaton: in favour of the decision in
Reyneke
(8) An application for the declaration of one spouse as a prodigal. There
are two requirements for this application. They are:
(a) The person must squander his or her assets in an irresponsible and
reckless manner.
(b) The squandering must be due to a defect in the person's power of
judgment or character.
These two requirements are not set out in the textbook and you do not
have to know them for purposes of the Family Law module.
6 CAPACITY TO LITIGATE
Capacity to litigate is the capacity to act as a party in a court case
You will note in your textbook on pages 85±87 that section 17 of the
Matrimonial Property Act regulates the capacity to litigate of spouses
married in community of property. You must ensure that you know, first,
what the terms of section 17(1) are and, secondly, what the consequences
of non-compliance with the provisions of this subsection are.
Regarding the provisions of section 17(4), you need only know that an
application for the sequestration of the joint estate must be brought
against both spouses, and that an application for the surrender of the joint
estate must be made by both spouses. Although an application for
sequestration has to be brought against both spouses, the application will
not be dismissed if it is brought against one spouse only, if the applicant
satisfies the court that, despite reasonable steps, he or she was unable to
establish whether the debtor is married in community of property or the
name and address of the debtor's spouse.
Lastly, you should note the provisions of section 17(5) of the Matrimonial
Property Act. You will see in your textbook on page 87 that section 17(5)
stipulates which spouse should be sued when a debt is recoverable from the
joint estate. This section of the work is therefore linked to the previous