In the olden days the question of which marriage regime one would choose to be applicable on one’s marriage was not specifically relevant unless one of the parties came from a wealthy background. But times have changed and couples are seeking to protect themselves should one of the parties, for example, become insolvent. Also, not everyone might have been able, at the time getting married, to obtain the relevant legal information in regard to the different marriage regimes our law has and their different consequences.
The question remains whether parties can change their marriage regime after being married in community of property?
In terms of section 21 of the Matrimonial Property Act 88 of 1984 “a husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, which applies to their marriage”.
It is however essential that the parties show that there are sound reasons for the proposed change; that sufficient notice of the proposed changed has been given to all creditors of the spouses; and that no other person will be prejudiced by the proposed change.
The parties will have to bring a High Court application via ex parte motion proceedings in which they state the above; will have to attend to the necessary advertisements in the Government Gazette and the relevant newspapers (one in Afrikaans and one in English); and will have to attach a draft to the application of the postnuptial notarial contract which they wish to enter into. After the court has granted the relief sought, the parties may formally enter into the contract.
As you will require assistance with litigation proceedings as well as with the postnuptial notarial contract, it is advisable to get a litigation attorney as well as a notary to attend to the necessary application on the one side, and the post-nuptial agreement on the other side.
Parties should also take note that the application is costly and should only be done if necessary.
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)