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.
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 procedure and cost of the application.
Unfortunately, the application is somewhat costly in that the parties have to apply to the 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 thereof, will regulate their matrimonial property system.
Once the court has granted an interim order, this order has to be forwarded to each of the creditors of the parties by prepaid registered post and must be published once in the Government Gazette and must, furthermore, be served on the Registrar of Deeds.
On the return date, the parties must once again approach the court to satisfy it that all the terms of the order have been satisfied and that no creditors have objected to the relief sought. Once the court is satisfied it will confirm the provisional order that it granted.
Depending on the costs of the advertisements in the newspapers (which alone could amount to about R2 000.00) the cost of the application will be about R20 000.00.