Section 21(1) of the Matrimonial Property Act No. 88 of 1984 provides that a husband and wife may apply jointly to court for leave to change the matrimonial property system which applies to their marriage.
The decision in Lourens et Uxor 1986 (2) SA 291 (C) sets out guidelines that the courts follow with regard to applications in terms of section 21(1) of the Matrimonial Property Act.
In order for the parties to change their matrimonial property system, the Act mentions the following requirements:
According to South African Law, the parties who wish to become married out of community of property must enter into an antenuptial contract prior to the marriage ceremony being concluded. If they fail to do so they are automatically married in community of property.
Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.
The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the Application will be heard, and must be given by certified post to all the known creditors of the spouses.
Moreover, the draft Notarial Contract that the parties propose to register must be annexed to their application.
The court must be satisfied that the rights of creditors of the parties must be preserved in the proposed contract. The application must therefore contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change, and whether or not any particular person will be prejudiced by such change.
Once the court is satisfied that the requirements have been met it may order that the existing matrimonial property system may no longer apply to their marriage, and authorize the parties to enter into a Notarial Contract by which their future matrimonial property system is to be regulated on such conditions as the court may deem fit.
Care must be taken to motivate fully the proposed change in the existing matrimonial property system. Applicants must explain why no other person will be prejudiced by the proposed change. In any event, the order sought, and the contract which it is proposed to register, shall contain a provision which preserves the rights of pre-existing creditors.
The negative side
Unfortunately, the application is expensive in that both spouses have to apply to the High Court on notice to the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract having the effect of a postnuptial contract which, after registration, will regulate the new matrimonial property system.
It would thus be cheapest and best to approach an attorney or notary prior to the marriage ceremony being concluded to draft a proper antenuptial contract regulating the matrimonial property of the parties involved, without any confusion.
This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.