A surety can be described as one who has contracted to be responsible for the debt of a debtor in circumstances where the debtor is still liable for the debt.
The purpose of a suretyship is to secure the performance of an obligation and is frequently used in commerce as part of the risk management program of a business.
A November 2012 Supreme Court of Appeal judgment has again emphasised the importance of having your t’s crossed and i’s dotted when it comes to suretyships signed in favour of your business.The surety in this case said that he was married in community of property and that his wife had refused her consent to his signing the deed of suretyship and that the suretyship was therefore invalid.
The Matrimonial Property Act states that both spouses have the same powers with regard to contracting of debts of the joint estate.The Act, however, does impose a very important prohibition on the one spouse binding him or herself as surety, by stating that a spouse shall not without the written consent of the other spouse bind himself as surety.This prohibition does not, however, apply where the suretyship is executed by a spouse in the ordinary course of his profession, trade or business.
AVOIDING THE “NO SPOUSAL CONSENT” DEFENCE
1.Conduct a deed search on the surety to establish whether he or she is married in community of property.
2.If he or she is, demand unequivocally that the spouse of the surety also signs the suretyship (see proposed wording in text box).
Implementing these two simple steps as part of your credit risk management program will save you money and headaches down the road.
FREE SAMPLE OF A “SPOUSAL CONSENT” CLAUSE
Consent in terms of the Matrimonial Property Act 88 of 1984
I, (Spouse 1) married in community of property to (Surety) consent in the presence of the undersigned witnesses to (Surety) binding himself/herself as surety to (Creditor) for (Debtor).