If you did not conclude an ante-nuptial contract before you got married, you will by default be considered as married in community of property.
BUT what if you wanted to be married out of community of property? We can assist you in changing your marital regime.
Here’s how…
Although the law does not permit you to conclude an ante-nuptial contract after marriage, the good news is that it is possible to change your matrimonial property regime from in community of property to out of community of property by registration of a post-nuptial contract by virtue of section 21(1) of the Matrimonial Property Act with the permission of the High Court.
The only way to legally change your matrimonial property regime in South Africa is to have an application (brought together by you and your spouse) issued in the High Court, requesting the High Court to grant you leave to sign a Notarial Contract (having the effect of a post-nuptial contract), which after registration will regulate your new matrimonial property regime.
The Matrimonial Property Act provides the following requirements to be met in order to have your matrimonial property regime changed:
- sound and motivative reasons for the proposed change must be set out in the application;
- sufficient notice of the proposed change must be given to all creditors, to the Registrar of Deeds as well as to the South African Revenue Service;
- notice of the application that is made must be published in a local Afrikaans newspaper, a local English newspaper and in the Government Gazette;
- you must include a statement in the application indicating whether either of the spouses has been sequestrated, under which circumstances the party was sequestrated and when the final sequestration order was granted;
- the application must indicate that your residential address is within the court’s jurisdiction;
- you must indicate whether either spouse is involved in current or pending litigation matters regarding debt that is to be recovered by creditors;
- the proposed post-nuptial contract, drawn up by a Notary Public, must be attached to the application;
- you must make available the full particulars of your financial position;
- you must make available a list of assets and the value thereof as well as a list of liabilities and the value thereof; and
- the court must be satisfied that no other person will be prejudiced by the change in the matrimonial property regime.
Once the High Court has heard the matter and is satisfied that all of the above requirements were met, a court order will be granted for the matrimonial property regime to be changed, the proposed post-nuptial contract will be executed and thereafter be registered in the Deeds Office. Consequently you will now be married out of community of property with or without the accrual system.
Since an application must be made to the High Court it is more costly to register a post-nuptial contract than an ante-nuptial contract.
If the application proceeds on an unopposed basis it will take approximately 3-4 months to conclude.
Feel free to contact us should you have any questions regarding this process at litigation@bedeker.co.za