Couples sometimes rush into marriage and before they realise it, they are bound by South Africa's default marital regime which is that of In Community of Property. This means that one joint estate belongs to both spouses in equal undivided shares.
Couples can choose to amend their marital regime to one of Out of Community of Property – with or without the accrual system. This will depend on which accrual option is most suited to the parties' circumstances.
Amending your marital regime is provided for in the Matrimonial Property Act No. 88 of 1984). More specifically, section 21 (1) of the Act provides that a married couple may jointly apply to court in order to amend the existing matrimonial property regime.
Steps to take under the Matrimonial Property Act
The Act further provides various requirements that have to be met in order to qualify for the amendment such as:
- There must be sound reasons for the proposed change.
- Notice of the intention to amend 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 known creditors.
- Draft notarial contract, which the parties propose to register, which must also be annexed to their application.
- Rights of creditors must be preserved in the proposed contract.
- Confirmation that no other person will be prejudiced by the proposed change.
- 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 change.
These are some of the requirements that have to be met in order for an amendment to be effected. The decision of Lourens et Uxor 1986 (2) SA 291 (C) confirmed the guiding principles that the court follow with regard to these applications.
February 7, 2019
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.