Where parties are married in community of property, debts are incurred by the
parties and not by the joint estate. Each spouse is liable for debt incurred by
either spouse. A creditor is, therefore, entitled to claim from joint estate of both
spouses (as co debtors). Such an estate includes not only the spouse's
undivided interest in the joint estate but also any and all separate property that
falls outside the joint estate. Once the joint estate is sequestrated, both spouses
become "insolvent debtors" and consequently the property (including separate
property) of both spouses is available to creditors.
The lnsolvency Act, as opposed to the Matrimonial Property Act, makes no
provision for the recognition or sequestration of 'separate property". Although an
estate is sequestrated, it is the debtor who is insolvent. A debtor (married in
community of property) who possesses "separate property" is on sequestration of
the joint estate insolvent in relation to both his or her undivided interest in the
joint estate as well as any "separate property". But is this correct? Ample
provision is made by various statutes for the exclusion of certain property from an
insolvent estate. Does this not mean that a debtor might be insolvent in relation
to one estate and not insolvent in relation to the other?
The estate of a partnership is, for purposes of sequestration, deemed to be a
separate entity from the partners' private estates. Where the partnership fails,
creditors first have recourse against the estate of the partnership where after any
shortfall may be claimed from the private estates of the partners. Although the
estates of partners are sequestrated simultaneously with the estate of the
partnership, creditors of the partnership may not proof their claims against the
estate of a partner and vice versa. Is it just and equitable that a spouse who
owns separate property is treated differently from a partner who does not
possess a separate estate in law from the partnership estate? A partner only has
one estate - a private estate that includes his or her interest in the partnership.
It is concluded that despite the judgment of the Supreme Court of Appeal in Du
Plessis v Pienaar, a sense of dissatisfaction still prevails regarding the status of
separate property. It is furthermore suggested that in view of the lack of
provisions in the insolvency Act regarding separately owned property, the said
Act be amended to provide for the specific exclusion of separate property from an
insolvent joint estate. It is more advisable to provide for the exclusion of separate
property from the insolvent joint estate than to provide for the simultaneous
sequestration thereof. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2004.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/179 |
| Date | January 2003 |
| Creators | Lubbe, Jan Hendrik van den Berg |
| Publisher | North-West University |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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