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Die uitwerking van insolvensie by die huwelik binne gemeenskap van goedere

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dc.contributor.author Hesselink MJ en
dc.date.accessioned 2016-09-22T07:16:29Z
dc.date.available 2016-09-22T07:16:29Z
dc.date.created 1991 en
dc.date.submitted 1995 en
dc.identifier.uri http://hdl.handle.net/20.500.11892/9940
dc.description.abstract The legal position with regard to marriages in community of property has changed during the past few years. Not only was the marital power abolished in marriages entered into after 1 November 1984, but power was abolished with retrospect in all marriages by the Fourth General Amendment Law, 132 of 1993. Both spouses have equal undivided tied-up shares in the community estate during the subsistence of the marriage. Donators and testators eliminate the detrimental effect of insolvency by excluding certain assets from the community estate. This exclusion is however an exception to the general rule that all the assets falls into the community estate. In the past there was however not certainty on the effect of these excluded assets, partly as a result of the conception which existed that spouses may have a separate estate next to the community estate. It was eventually believed that the separate or excluded assets were not attachable by the debtors of the community estate. After the judgement of Badenhorst v Bekker 1994 2 SA 155 N, it was certain that such excluded assets had only inter partes operation and is not enforceable against creditors. The reason for this is to be found in the nature of complete community of assets in which both spouses were bounded co-owners in the Law of execution. Only when the arrangement to exclude certain assets from the community estate, is registered in the Deeds Office, would it have operation against creditors. Although donations between spouses are no longer prohibited, it can never be made to the detriment of creditors and the provisions of the Insolvency Act must always be kept in mind. The Insolvency Act 24 of 1936 does not specifically provide for the existence of separate assets next to the community assets. A writer like Hahlo is of the opinion that the legal position should be dealt with on the analogy of section 21, which exists in connection with marriages out of community of property. The Court in Badenhorst v Bekker analyzed the legal position and found that the answer lies in the Insolvency Act. The sequestration of the community estate has the effect that both spouses become insolvent and both spouses are bound by the effects of sequestration. There is however no provision in the Insolvency Act which specifically deals with excluded assets. The uncertainty on the status of excluded assets, can be of a lack to ascertain whether the spouse was debtor of the creditors of the insolvent community estate. The spouses are co-debtors and community of property can be described as a complexity of both assets and liabilities. During the existence of the marriage the debts can be recovered for all the assets of both spouses. Debtors which arise out of excluded assets, have only inter partes operation and such creditors have the same rights as creditors of the community estate. The problem of insolvency can be overcome by a testamentary disposition which is subject to a resolutive condition or to provide for the creation of a discretionary mortis causa trust. en
dc.language Afrikaans en
dc.subject Law en
dc.subject Private law (general)/Roman Dutch law en
dc.title Die uitwerking van insolvensie by die huwelik binne gemeenskap van goedere en
dc.type Masters degree en
dc.description.degree LLM en


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