Can I sequestrate without my spouse?
FAQs - Bankruptcy in general

There are basically only two marital regimes in terms of South African Law:

  1. In community of property; or
  2. Out of community of property.

Married in community of property

If you do not enter into an Antenuptial Contract prior to your marriage, you will automatically be married in community of property in terms of South African Law. Both parties’ individual estates will be combined into one jointly owned estate by the marriage. This means that all pre-marital assets, debt and liabilities are all pooled into one estate once the marriage is concluded, from which point onwards, only one jointly owned estate will exist. Both parties will be jointly liable for debt-repayment towards their combined creditors, irrespective whom incurred the debt. If you are married in community of property, you will not be able to file for bankruptcy without your spouse's consent - both parties will have to jointly apply for bankruptcy in a single application.

Married out community of property

If you did enter into an Antenuptial Contract prior to your marriage, your are married out of community of property. Irrespective whether or not the accrual system is applicable, the one spouse cannot be held liable for the other spouse's debt, unless they signed surety for the debt. Accordingly you will be able to file for bankruptcy without your spouse's consent or intervention.

However, even though we are in fact dealing with two separate individual estates with regards to the individual spouses' assets and liabilities, Section 21 of the Insolvency Act will apply.  In this section the word “spouse” refers not only a wife or husband in the legal sense, but also a wife or husband by virtue of a marriage according to any law or custom, and also a woman living with a man as his wife or a man living with a woman as her husband, although not married to one another according to Section 21(13).

If your bankruptcy is tended to by professional bankruptcy attorneys and experts, we will assist your spouse free of charge in assuring that they do not lose any of their assets.