Page:An introduction to Roman-Dutch law.djvu/122

 Rh 82 THE LAW OF PERSONS ends on dissolu- tion of marriage whereon ante-nup- tial lia- bilities, still undis- charged, burden the ori- ginal debtor alone. been performed ; ^ it persists during its continuance and ends upon its dissolution. Thereupon the common fund is divided ipso jure into two equal shares, one of which vests in the surviving spouse, without regard to the amount which such spouse may have contributed, the other of which vests in the testamentary or intestate successors of the deceased.^ On the dissolution of the community post-nuptial liabilities attach to the extent of one-half to each moiety of the now divided estate.* Ante-nuptial liabiHties on the other hand, which have not been discharged during the marriage, revert exclu- sively to the side from which they originally came.* Community of goods being an institution of the Roman- Dutch common law, aU marriages are, in the absence of proof to the contrary, presumed to have been contracted in community,^ and the legal consequences of community follow, except so far as they are excluded expressly or by necessary impHcation. They attach not only to a first, but also to a second or subsequent marriage,* subject, however, to certain rules and restrictions to be presently mentioned. There are, nevertheless, certain cases to which the rule of community does not apply. These are : (1) when the parties are within the prohibited "■ Gr. 1. 5. 17 ; 2. 12. 5 ; Neostad., de pact, antenupt. Obs. 15-17; Van Leeuwen, 4. 23. 3. ^ Gr. 2. 11. 13. Children who have received advances must bring them into collation for the benefit of the joint estate before division. Ibid. ; V. d. K. Th. 223. Gr. 1. 5. 22 ; V. d. K. Th. 93 and 223. Creditors may sue the husband or his heirs for the whole debt, the wife or her heirs only for half. The husband (or his heirs) has recourse against the wife (or her heirs) to the extent of one-halt. Gr. 2. 11. 17 ; Voet, 23. 2. 52 and 80. If the husband is insolvent the creditors may proceed by right of surro- gation against the wife for the recovery of half the debt. Voet, ibid. p. 415 ; V. d. K. Th. 224. According to Voet (23. 2. 80), if the husband (or his heirs) has discharged the whole of an ante-nuptial debt, he (or they) has (have) regressus against the wife or her heirs in respect of one-half. Schorer {ad Grot, ubi sup.) takes the same view. Van der Keessel {ubi sup.) dissents. See Loenius, Decis., case 99, and Boel's Excursus. ^ Fame v. Tulbagh Divisional Council (1890) 8 S. C. 72. « Van Leeuwen, 4. 23. 5 ; V. d. K. Th. 219.
 * Gr. 2. 11. 15 ; Van Leeuwen, 4. 23. 6 ; Hoola van Nooten, vol. i,