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My wife and I are married put of community of property with…

My wife and I are...
My wife and I are married put of community of property with accrual. We sold a property we jointly owned and the proceeds were paid into an account in her name. Is the money in her account safe from my creditors if I am sued, for example
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Answered in 12 minutes by:
3/13/2018
Christiaan K
Category: South Africa Law
Satisfied Customers: 228
Experience: Attorney & Director at Lombard Kotze Incorporated
Verified

Good day

My name is ***** ***** I will assist you in answering your question today so please feel free to ask as many follow-up questions as you like until you are satisfied that I have answered your question.

The money is only safe if your creditors does not know about it. If they do find out, they can legally claim the money through the garnishee process described in Rule 45(12) of the Uniform Rules of Court which reads as follows:

"(12) (a) Whenever it is brought to the knowledge of the sheriff that there are debts which are subject to attachment, and are owing or accruing from a third person to the judgment debtor, the sheriff may, if requested thereto by the judgment creditor, attach the same, and thereupon shall serve a notice on such third person, hereinafter called the garnishee, requiring payment by him to the sheriff of so much of the debt as may be sufficient to satisfy the writ, and the sheriff may, upon any such payment, give a receipt to the garnishee which shall be a discharge, pro tanto, of the debt attached."

I trust that this answered your question.

Please be so kind as to rate my service by clicking on the relevant stars or smiley faces. If you do not rate my service, I do not get paid by the website so I would really appreciate it if you would be so kind as to rate my service positively.

Kind regards

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Customer reply replied 5 months ago
I thought that marriage out of community of property protected one spouse from the other spouses debts?

Yes it does but this has got nothing to do with your matrimonial property regime.

You owned the property jointly and you are therefore entitled to 50% of the proceeds. The fact that the money is in your wife's account does not mean a thing. Even if it were held by a third party, a creditor could still get hold of it by following the process described above.

The facts are that the money is yours irrespective of who is holding it.

I know that this was possibly not the answer you were hoping for but please bear in mind that I am obliged to supply you with sound legal advice in accordance with the current legal position and that I am not able to change the laws to suit your case.

I therefore ask that you keep this in mind when rating my service and that you will rate my service, irrespective whether you like my answer of not.

Regards

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Customer reply replied 5 months ago
Thank you. So what is the best legal way to protect that money from a creditor of mine should that situation arise in future?

Sorry for the delay in replying.

There is really not many legal ways to do this. If the money is gone, then it is gone even if it was wasted.

I suppose you can donate the money to your wife but then that donation can possibly be attacked by creditors on the basis of a disposition without value for a period of 6 months after the donation.

Also, nothing would prohibit your wife from refusing to give it back later if you want it back.

I am sorry but any other "advice" of how to prevent what you want to prevent will be unlawful and as such, I cannot supply your with advice on how to defraud creditors.

I hope you understand this and I would appreciate it if you would rate my service positively.

Regards

Christiaan K
Category: South Africa Law
Satisfied Customers: 228
Experience: Attorney & Director at Lombard Kotze Incorporated
Verified
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CaseLaw
CaseLaw, Attorney
Category: South Africa Law
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Customer reply replied 5 months ago
Please can you call me tomorrow morning at 08h30?
Customer reply replied 5 months ago
Actually if possible could you call at 08h00 tomorrow?

Sorry, I have only noticed your request now and the offer have now expired.

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I will gladly give you a call if you make the request again.

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Customer reply replied 5 months ago
How do I request call again?

Not sure how you did it the first time. I usually have a block that I can click on to offer premium services but the block is greyed out on my side. If you can confirm that you still want a phone call I can find out from the site administrators and get back to you a bit later.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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