If I am married in community of property, is it
possible to change to another form of marriage contract?
Section 21(1) of the Matrimonial Property Act provides that a husband
and wife may apply jointly to court for leave to change the matrimonial
property system which applies to their marriage.
Requirements In order for the
parties to change their matrimonial property system, the act mentions the
following requirements:
a) There must be sound reasons for the
proposed change. 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 then 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.
b) Sufficient notice of the
proposed change must be given to all creditors of the spouses. 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 which the parties propose to register must be annexed to their
Application.
c) The court must be satisfied that no other person will be prejudiced by the proposed change. The
court must be satisfied that the rights of creditors of the parties must be
preserved in the proposed contract so the application must 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 the 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 them to enter into a Notarial contract by which
their future matrimonial property system is to be regulated on such conditions
as the court may think fit.
The decision of Lourens et Uxor 1986 (2)
SA 291 (C) sets out guidelines that the courts generally appear to have
followed with regard to applications in terms of section 21(1) of the Matrimonial
Property Act No. 88 of 1984.
The procedure and cost of the application.
Unfortunately, the application is expensive in that you and your
spouse 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 you new matrimonial property system.
