Signing a suretyship can seem like a standard administrative step in business or finance—until you’re married in community of property. In South Africa, this matrimonial regime comes with shared ownership of assets and a unique set of legal guardrails that apply when one spouse attempts to bind the estate through personal or business commitments. One misstep, and a signature on a suretyship contract could expose both spouses—and the entire joint estate—to significant financial risk.

Many couples are unaware that the Matrimonial Property Act imposes strict conditions on transactions like suretyships. While spouses generally enjoy equal powers to manage the estate, certain acts—especially those that involve binding the estate to another party’s debts—require formal consent. But as with many areas of law, there are exceptions. And if you're a business owner or professional, the rules may shift entirely.

To fully understand when consent is required, and what happens if it's missing, it helps to look at both the legislation and the courts’ interpretation of it. The case of Strydom v Engen Petroleum provides exactly that—a cautionary tale for anyone signing surety while married in community of property.

Equal Powers, but with Limits – Section 15 of the Matrimonial Property Act

Under South African law, spouses married in community of property share a single, joint estate. This means that all assets and liabilities—unless excluded by law—belong equally to both spouses. In principle, both parties have equal rights to manage, use, and dispose of property within the estate. This baseline of equality is set out in Section 15(1) of the Matrimonial Property Act 88 of 1984, which affirms that each spouse has the legal capacity to act without the other’s consent in many everyday financial dealings.

However, this freedom is not absolute. Sections 15(2) and 15(3) of the Matrimonial Property Act South Africa place limitations on what a spouse can do unilaterally. Certain transactions—especially those that may put the joint estate at risk—require the informed consent of the other spouse, either written or oral depending on the type of act. These safeguards are designed to prevent one spouse from entering into obligations that could harm both parties.

One of the clearest examples of this restriction is found in Section 15(2)(h), which states that a spouse may not bind themselves as surety—i.e., enter into a suretyship contract—without the other spouse’s consent. This is because a suretyship involves a personal guarantee for another party’s debt, which could result in financial loss for the entire joint estate if that third party defaults.

But there’s an important qualifier: the Act makes an exception where the suretyship is signed in the ordinary course of the spouse’s profession, trade, or business. This is where the law becomes more nuanced—and where many disputes begin.

When Consent Is Not Required – The Business Exception to Suretyships

Section 15(2)(h) of the Matrimonial Property Act may seem like a firm line in the sand—no spouse may sign a suretyship contract without the consent of the other. But just below that line sits a powerful exception that changes everything for those operating in a professional or business context.

If a spouse signs a suretyship “in the ordinary course of their profession, trade or business,” the law allows them to do so without spousal consent. The rationale is practical: someone actively running a business may need to provide guarantees or sign suretyships as part of their day-to-day operations. Requiring consent for every transaction would undermine their ability to function commercially.

But this exception is not automatic, and it’s certainly not something you can rely on blindly. The courts will not simply accept a claim that the suretyship was business-related—they will scrutinise the nature of the business, the role of the spouse, and whether the signing of the suretyship forms a regular, necessary part of that activity.

The burden falls squarely on the spouse claiming the exception to prove that the transaction was indeed within the ordinary course of their profession, trade or business. And as the next section will show, even a title like “director” or “business owner” is not enough on its own to satisfy the court.

Strydom v Engen Petroleum Limited

The case of Strydom v Engen Petroleum Limited [2013] 1 All SA 563 (SCA) remains one of the clearest illustrations of how the courts apply Section 15 of the Matrimonial Property Act South Africa—and how the so-called business exception plays out in practice.

Mr. Strydom, who was married in community of property, signed an unlimited suretyship contract in favour of Engen Petroleum. He did so in his capacity as a director of a company, effectively binding himself as surety for the company’s debts. When the company was later liquidated, it owed Engen approximately R25 million. Engen pursued Strydom based on the suretyship, and the High Court granted judgment against him.

Strydom appealed the decision, arguing that the suretyship was invalid because his wife had not consented to it—making it contrary to Section 15(2)(h) of the Act. His argument was simple: he was married in community of property, the suretyship could impact the joint estate, and therefore, consent was required.

But the Supreme Court of Appeal approached the matter differently. The justices noted that Section 15(2)(h) cannot be applied in isolation. It must be read alongside the provision that excludes transactions concluded in the ordinary course of the spouse’s trade, business, or profession. The court wasn’t interested in marital consent alone—they wanted to know how the suretyship related to Strydom’s business role.

Strydom failed to show that signing the suretyship fell outside the normal course of his professional dealings. As a director of the company, it was not unusual or extraordinary for him to bind himself as surety for its debts. He couldn’t prove otherwise, and as such, the exception applied—rendering the suretyship binding despite the lack of his wife’s consent.

The appeal was dismissed, and the judgment of the High Court stood.

This case makes one thing clear: simply being married in community of property does not invalidate a suretyship contract. The court will examine the substance of the transaction and how it fits into the context of the signatory’s business life.

Aucamp Inc – Trusted Marriage Contract Lawyers in South Africa

Suretyships can have far-reaching consequences—especially when marriage and shared estates come into play. If you're married in community of property and you're asked to sign a suretyship contract, the legal implications are too serious to leave to guesswork.

At Aucamp Inc, we provide clear legal guidance to help you protect your joint estate, navigate contractual obligations, and make informed decisions. Whether you're reviewing a suretyship, finalising a marriage contract, or need advice grounded in experience, we’re here to support you.

Contact us for trusted legal advice on matrimonial property and contract law.