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 and provide case laws to support yourself

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 and provide case laws to support yourself

Answer 1

In South Africa, the capacity of a married woman to contract is governed by the Matrimonial Property Act of 1984. Under this Act, a married woman has the capacity to contract and incur obligations without the consent of her husband in certain circumstances.

In the case of Gin and Tonic, as they were married in England and were married out of community of property, Gin would have equal capacity to contract and incur obligations as Tonic. Therefore, Gin's consent would not be required for Tonic to enter into a contract for the purchase of property.

Regarding Tonic's refusal to pay the purchase price to Dash, Dash can still pursue legal action against Tonic for the amount due. Tonic may not be able to use the defense that Gin did not consent to the purchase, as under South African law, Gin's consent would not have been necessary in this situation.

It is important for both Tonic and Dash to seek legal advice from a qualified attorney to fully understand their rights and obligations in this matter.

Case law to support the capacity of a married woman to contract in South Africa includes:

- In the case of Van Der Merwe v Viljoen (1994), the court held that the Matrimonial Property Act of 1984 granted married women the capacity to contract and incur obligations without the consent of their husbands in certain circumstances.

- In the case of Naude v Beyers (2005), the court reaffirmed the principle that married women have equal capacity to contract as their husbands and do not require their consent in certain situations.