In order for parties to change their matrimonial property regime from ‘in community’ to ‘out of community’, both parties will need to apply to the High Court in terms of Section 21(1) of the Matrimonial Property Act 88 of 1984 for leave to sign a notarial contract which, after registration at the Deeds Office, will have the effect of an antenuptial contract which will regulate the new matrimonial property regime.
Section 21(1) of the Matrimonial Property Act, sets out the requirements for the application, which were confirmed in the case of Lourens et Uxor 1986 (2) SA 291 (C) as follows:
- Neither of the parties are insolvent or have any judgments or legal action against them.
- No other person will be prejudiced by the change.
- The rights of creditors must be preserved in the proposed contract.
- Notice of the application must be given to the Registrar of Deeds in terms of section 97 (1) of the Deeds Registries Act 47 of 1937.
- The draft notarial contract which it is proposed to register must be annexed to the application.
- Notice of intention to make the application must also be published in the Government Gazette and one English and one Afrikaans newspaper at least two weeks before the date on which the application will be heard.
- The date upon which the application will be heard must be specified in the published notice, setting out what steps an objector to the order sought must take and where the application and draft contract can be inspected.
- In addition, at least two weeks’ prior notice of the application must be given by registered post to all creditors. A list of such creditors, verified by affidavit, shall be included in the application and proof that such notice has been given to them must be provided by means of an affidavit to which are annexed the relevant certificates of posting.
- Sufficient information regarding the assets and liabilities of the parties concerned must be set out in the application to enable the Court to judge whether or not there are sound reasons for the proposed change and whether or not any other person will be prejudiced by the proposed change.
When the court is satisfied that the requirements have been met, it will order that the existing matrimonial property regime no longer applies to the marriage and authorise the parties to enter into an antenuptial contract which will regulate their future matrimonial property regime.
It is advisable that before you tie the knot you consult with an attorney and ensure that you get married under a regime that most adequately suits you and your future spouse’s needs.
by Kim David
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. Errors and omissions excepted (E&OE)