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JW Fourie
JW Fourie, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience:  L.LB (UOVS)
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Christo, I am interested in obtaining legal

Customer Question

I am interested in obtaining legal advice and protection regarding my current situation. I am South African and my husband British. We got married in England, and live here, but I retained my South African citizenship. We didn't sign any prenups, but also don't own any property together. My husband owns a house. Before I got married I entered into a property deal which the main signatory stopped paying without telling any of the sureties and the bank is subsequently is trying to claim the money from those of us who signed surety. I only found out about this in the last couple of years so had no idea that I might find myself in great debt. I have not told my husband about this as it happened before we got married and as it also transpires that the bank did not handle the surety documents in a legal or ethical manner so the case is currently in dispute and remains unsettled. My husband is considering taking a job in South Africa and I am wondering how/if my pre-marraige history will affect him. The law in England states that spouses are protected against any debts incurred before a marraige so the English law protects him here. Our marraige is not registered in South Africa, so if we go there, how will my past mistakes affect him? Are we automatically 'in communion of goods' if we go there? How does this work and how do I go about legaly protecting him against all of this, if we move to South Africa Many thanks

Submitted: 2 years ago.
Category: South Africa Law
Expert:  JW Fourie replied 2 years ago.
JW Fourie :

Since your husband is English and since you were, at the time of the wedding, ordinarily resident in the UK, the Laws of England will apply to your marriage. That is the case whether you are in England or whether you are in South Africa. So, if UK law says that you are not liable for his debts, then you would not be liable for his debts in South Africa either.

JW Fourie :

I am not sure if this answers your question. So if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively

JACUSTOMER-083sr0qt- :

Hi JW - Thanks for answering my question. The debt I worry about is mine that I incurred in South Africa in 2007. We only got married in 2010 whilst I was traveling in England.

JACUSTOMER-083sr0qt- :

He does not have South African citizenship. If we go back there, he will be on a work permit. I want to make sure that because he is married to a South African, the South African Law won't try and hold him accountable for debt I incurred way before he was even in the picture.

JW Fourie :

No need to worry. South African law dictate that one party is not liable for the debt of another party unless, like in your case, a surety was signed. Where a marriage is in community of property, there is only one common estate, so that is why it is said that husband and wife is liable for each other's debt. Strictly speaking this is not the case. In a marriage in community of property, there is only one debt belonging to the husband and the wife both, irrespective of who signed the contract.

JW Fourie :

In your case, since the English Law applies to your marriage property regime and the English Law dictate that he is not liable for your debt, that will be carried over to South Africa as a marriage out of community of property and he will also not be liable for your debt here in South Africa.

JACUSTOMER-083sr0qt- :

They may expect of us to register our marraige in South Africa, which would be fine if it is just a matter of them knowing about it, but with SA being SA, I would assume our marraige as 'in community of property' because we didn't sign prenups in England because it would entitle SA to his property.

JW Fourie :

Note, however, that the views expressed on how the English Law operates has only been repeated since you said that is how it operates. I am not an English Law Expert and as such, I based my answer on the hypothesis that you are correct in stating that English Law dictate that he is not liable for your debt.

JW Fourie :

No, when we describe your marriage, it will be as follows:

JW Fourie :

Mr. So and So married to Mrs. This and That, married to each other in accordance with the Laws of the United Kingdom.