Changing your marital property system after getting married is expensive and you want to avoid getting to this situation. However, if you find yourself in this situation and want to change your marital property system, there is a way to do it. This post will help you understand this process.
Section 21(1) of the Matrimonial Property Act allows you and your spouse to apply to court for leave to change your marital property system after you are married.
Requirements to change your marital property system
The case of Lourens et Uxor sets out the guidelines that the courts follow when considering whether to allow you to change your marital property system in terms of section 21(1) of the Matrimonial Property Act.
If you want to change your marital property system, the Act mentions the following requirements:
- There must be sound reasons for the proposed change.
According to South African law, if you are getting married soon and you want to be married out of community of property, you will have to draft and sign your antenuptiual contract before you get married. If you don’t do this, you will be automatically married in community of property. Of course, many people are unaware of this provision. You need to be able to convince the court that it was your express intention to be married out of community of property.
- Sufficient notice of the proposed change must be given to all creditors of the spouses.
The Act requires that you must give notice of your intention to change your marital property system. Notice must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks before your application is heard in court. Your notice must be given by certified post to all the known creditors of the spouses. Also, your draft Notarial Contract that you propose to register must be attached to your application.
- 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 your creditors must be preserved in the proposed contract. The application must therefore contain sufficient information about your assets and liabilities. This will help the court to ascertain whether or not there are sound reasons for the proposed change, and if any particular person will be prejudiced by such change.
Once the court is satisfied that the requirements have been met, it may authorise a change of marital property system.
The negative side
Unfortunately, the application is expensive. Both 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 which will regulate your new matrimonial property system.
It would be cheapest and best to approach an attorney or notary before your marriage ceremony to draft and sign a proper antenuptial contract. We are currently running a special on our antenuptial contracts up until January 2018. So if you want to avoid the above process of changing your marital property system, do it right the first time!
This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice.