In 1975, Gin and Tonic got married whilst both had their domicile in England. In terms of the English Matrimonial Causes Act 1973, they were married ex lege out of community of property. In 2024, they visited South Africa and Tonic bought a flat (“voetstoots”) for speculation purposes from Dash without Gin’s consent. Shortly afterward, Tonic realised the property is a poor investment and has since refused to pay the purchase price. Dash now claims the amount due. Fully advise both Tonic and Dash on the capacity of a married woman to contract provide case law apply private international law to answer

Question

In 1975, Gin and Tonic got married whilst both had their domicile in England. In terms of the English Matrimonial Causes Act 1973, they were married ex lege out of community of property. In 2024, they visited South Africa and Tonic bought a flat (“voetstoots”) for speculation purposes from Dash without Gin’s consent. Shortly afterward, Tonic realised the property is a poor investment and has since refused to pay the purchase price. Dash now claims the amount due. Fully advise both Tonic and Dash on the capacity of a married woman to contract provide case law apply private international law to answer

Answer 1

Under English law, Gin's consent is required for Tonic to enter into contracts that could affect their matrimonial property. This is based on the principle that married couples are considered to be one legal entity when it comes to their shared assets. However, as their marriage was out of community of property, Gin's consent may not be strictly necessary for Tonic to purchase property in South Africa.

In terms of South African law, the capacity of a married woman to contract varies depending on whether the marriage is in or out of community of property. In the case of Gin and Tonic, as their marriage is out of community of property, Gin may have the capacity to contract independently of Tonic. This means that Tonic may not have needed Gin's consent to purchase the property from Dash.

However, the fact that Tonic has since refused to pay the purchase price could potentially lead to legal complications. Dash may have a claim against Tonic for breach of contract, regardless of Gin's involvement. Tonic may also be liable for any damages incurred by Dash as a result of his refusal to pay.

In terms of private international law, the applicable law would likely be South African law, as the property in question is located there. It would be advisable for Tonic and Dash to seek legal advice from a South African lawyer to determine their rights and obligations under South African law in this situation. Additionally, Gin may also need to be consulted to clarify her role in any potential legal actions.