When you are married in community of property and both estates of spouses are joined, the following applies regarding proceeding to summons for damage.

• Spouses married in community of property cannot sue each other for damages.The reason being that it will be pointless as money taken from the joint estate to pay the other spouse, will simply fall back into the joint estate.

  BUT there is an exemption to this rule….. A spouse can sue the other for non-financial loss arising out of bodily injuries caused by the other spouse.

  An example of this will be if the wife is a passenger in a car driven by her husband, and because of his negligent driving they are involved in a car accident.  She can summons him for her pain and suffering because it is a non-financial loss.  She cannot summons him for her medical expenses, as that is considered a financial loss.  Damages that she recovers in respect of the non-financial loss will fall into her “separate” estate and outside of the joint estate.

• Spouses married in community of property suffering a loss due to damage caused by another party have to act together in legal action.Both parties have to institute legal action by proceeding to act as Plaintiff 1 and 2 in a matter or application.

An example will be when an immovable property is rented to a legal person and rent is not paid.  To proceed to summons both parties, being the legal owners of the immovable property have to be involved and cited as plaintiffs in the matter.

This is why when instituting legal action or when we are assisting with transferring of an immovable property, we as legal practitioners have to make sure as to our client’s marital status, to enable us to proceed correctly when instituting legal action or even drafting an agreement or attending to a transfer of property.  Both parties have to be in agreement to proceed with legal steps or sign when entering into a legal agreement.