Spouses who have not concluded a valid antenuptial contract are, by default, married in community of property. Section 15(2)(h) of the Matrimonial Property Act requires written consent of the other spouse when a spouse wishes to “bind himself as surety.” However, this defence does not always succeed.
“Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse.”
“The provisions of paragraph (h) (bind himself as surety) of subsection 2 do not apply where an act contemplated in those paragraphs is performed by a spouse in the ordinary course of his profession, trade or business.”
Where a spouse binds themselves as surety in the ordinary course of their business, no written consent from the other spouse is required — and the suretyship remains valid and enforceable.
Mr. Strydom executed a deed of suretyship in favour of Engen for R25 311 432.21. His defence: his wife had not consented and had expressly disapproved. The SCA rejected this — he could not show that the suretyship was not given in the ordinary course of his business. Mrs. Strydom was implicated in the debts despite her disapproval.
Mr. Maharaj signed a deed of suretyship for R1 473 722.00. After divorce, Ms. Maharaj challenged the suretyship. The Court held it was concluded in the ordinary course of business — consent was not required, and the creditor could proceed against the joint estate. The post-divorce indemnity could not defeat the creditor’s rights.
A spouse who seeks to escape suretyship liability by raising a defence of “no consent” will face extreme difficulty — particularly where the suretyship was furnished in the ordinary course of business, trade, or profession. Spouses in community of property should understand their contractual powers and the potential risk to the joint estate.