Couples who are looking to tie the knot can choose the type of matrimonial property regime they want to enter into, prior to registering their marriage. Usually a couple will choose a matrimonial propriety regime based on their current circumstances after having assessed their assets vs liabilities or will look at their appetite for risks in business in order to figure out how they want to protect each other. It is also noteworthy that should a couple not enter into an ante-nuptial contract (ANC), South Africa’s default matrimonial propriety regime will become applicable and enforceable to their marriage, which is marriage in community of property. According to the Matrimonial Property Act 88 of 1984 (“the Act”), there are three regimes applicable, namely, marriage in community of property, marriage out of community of property with accrual, and marriage out of community of property without accrual. For a detailed explanation of these regimes please refer to our previous blog titled ‘How to plan for a divorce.’
But what happens when the initial regime no longer suits the spouses? Can they change it? If so, how long after they have been married can they change their propriety regime? What are the effects of changing it? And does the change apply retrospectively?
According to section 21(1) of the Act, a married couple may jointly apply to the High Court for amendment of their existing matrimonial property regime. This also applies to couples who married before the commencement of this Act. This effectively means that no matter how much time has passed since the solemnisation of the marriage, the matrimonial property regime can still be changed under section 21(1).
In order for the court to grant the application for change of matrimonial property regime between the spouses, it has to be satisfied of the following:
- There are sound reasons for the application for change.
- Sufficient notice has been given to all creditors of the spouses of the proposed change:
- At least two weeks’ notice must be given to all creditors of the spouses by certified post.
- According to the case of Ex Parte Lourens et Uxor & 4 Others 1986 (2) SA 291 (C) two weeks’ notice of intention to make an application to change must be given in various publications including the Government Gazette and two local publications (one in English and one in Afrikaans). The date upon which the application will be heard in court must be stated in the notice. Furthermore, should a party wish to object to the proposed change, steps that must be taken in order to object must be set out in the notice.
- A seven days’ notice of application of the change must be given to the Registrar of Deeds in terms of section 97(1) of the Deeds Registries Act 47 of 1937, if there are any immovable properties registered with the Deeds office.
- There is no other person who will be prejudiced by the proposed change.
The application must also contain sufficient information about the parties’ assets and liabilities in order to enable the court to ascertain whether there are sound reasons for the proposed change and whether any other person will be prejudiced by the proposed change. The proposed contract must also preserve the rights of the spouses’ creditors.
If the above are fully satisfied, the court may grant the order that the existing matrimonial property regime no longer applies and the couple sign a notarial contract (a draft of which must be annexed to their court application) that will regulate their future matrimonial property system.
If the court grants the application, what does this mean for the matrimonial property system of the marriage?
- The previous matrimonial property regime will no longer apply to the marriage.
- The notarial contract signed by the parties will set out the regulations that will now apply to the new matrimonial property regime chosen by the parties.
- At the dissolution of the marriage or the death of one of the spouses, the matrimonial property regime stated in the notarial contract will apply.
- The section 21(1) application does not have a retrospective effect. The new marital regime is effective from the date of registration and not from the date of marriage.
Samukelisiwe N. Mbuthuma (LLB (UKZN), LLM Candidate (UKZN))