You are a practising attorney and insolvency expert. Mr Broke approaches you for advice.

Question

During your consultation with Mr Broke the following comes to light:
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Mr Broke is married out of community of property to Mrs Broke (née Havalotamoney)
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Mr Broke has the following liabilities: (i) a home loan from RobBanks Bank valued at R500 000 and secured by a mortgage bond; (ii) several smaller unsecured loan from We Loan Everyone Money Bank to the value of R450 000.00, (iii) a loan from a loan shark, Mr Shark, valued at R40 000.00; and (iv) a small loan from a Family Member Littlemoney to the value of R10 000.00.
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Mr Broke’s assets comprise of the following: (i) a house valued at R450000; (ii) a car valued at R50 000; and (iii) smaller loose assets valued at R25 000.
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Mr Broke has a business in his personal name the business has no assets, 1 employee whom is owed a salary of R20 000
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Mrs Broke is completely solvent, having an estate worth R300 000 consisting of a bank account containing inheritance money she got in terms of a will that states this amount is to be excluded from insolvency and various smaller assets with a total value of R50 000.00. Mrs Broke has no liabilities at all.
Your instruction is that Mr Broke does not want to go under debt review and has heard that sequestration may be an option for him to explore to escape the crushing debt he finds himself in. Advise the Broke’s on the following matters:Mrs Broke believes that she is protected from insolvency and any impending sequestration of Mr Broke as they are married out of community of property. Is she correct in her view? Please advise her as to the position of the solvent spouse and what it encompasses a spouse should Mr Broke be successfully sequestered. (10)

Answer 1

In terms of South African law, particularly the Insolvency Act and the principles surrounding marriage out of community of property, there are several important considerations regarding Mrs. Broke's position in light of Mr. Broke's potential sequestration.

1. Marital Property Regime:

Mr. and Mrs. Broke are married out of community of property, which means that their estates are separate. Each spouse owns their own assets and is responsible for their own liabilities. Thus, Mrs. Broke’s estate, which has no liabilities, is protected from Mr. Broke’s debts.

2. Implications of Sequestration:

If Mr. Broke were to be sequestrated (declared insolvent), this process would indeed affect his personal estate only.

• Sequestration of Mr. Broke:

  • Mr. Broke's assets and liabilities would be dealt with by the Master of the High Court. His creditors would have a claim against his estate, and his debts would be managed through the insolvency process.
  • The home valued at R450,000, the car worth R50,000, and loose assets estimated at R25,000 may be liquidated to pay off his creditors, subject to any exemptions that may apply.

• Protection for Mrs. Broke:

  • Because they are married out of community of property, Mrs. Broke's assets—including her bank account with inheritance money and other small assets—are not at risk of being included in Mr. Broke’s sequestration.
  • It is important to note, however, that if Mrs. Broke were to become involved in any transactions that could be construed as an attempt to defraud creditors (for example, transferring significant assets to avoid them being included in Mr. Broke's estate), then she could potentially expose her assets to risk.

3. Spousal Implications:

While Mrs. Broke maintains her financial independence, there are a few other implications for her relationship with Mr. Broke during and post-sequestration:

• Maintenance Claims:

  • If Mr. Broke were to be unable to maintain his living expenses due to the sequestration strictures, Mrs. Broke might be asked to support him. However, she is not legally obliged to do so simply because they are married.

• Future Earnings:

  • Mrs. Broke can keep any income she earns from her own activities without fear of it being claimed by Mr. Broke's creditors.

• Joint Property:

  • Any property owned jointly (if they had any joint venture or investments) could be at risk. However, since they are married out of community of property, it appears they do not hold any joint assets.

4. Advice Moving Forward:

• Consider Voluntary Sequestration:

  • If Mr. Broke is considering sequestration, he should consult with a sequestration attorney about the process, potential benefits, and implications.

• Financial Decisions:

  • It would be wise for Mrs. Broke to separate her finances completely and seek legal advice to ensure that her assets are protected and that she avoids any actions that might inadvertently involve her in any of Mr. Broke’s debt issues.

• Disclosure:

  • Mr. Broke should disclose all relevant financial information to the attorney handling his sequestration to avoid complications and potential claims against his estate.

In summary, Mrs. Broke is correct in her belief that her assets are generally protected from Mr. Broke’s sequestration due to their marriage out of community of property, but both spouses should exercise caution and seek to understand their rights and obligations to navigate this challenging time effectively.