The choice of a matrimonial property system is typically made before the wedding ceremony through the execution of an Antenuptial Contract (ANC). However, as circumstances change, whether through business ventures, inheritance, or a simple shift in financial planning, many couples wonder if they are “locked in” to their initial choice.
The short answer is yes, you can change your marital property system after marriage through a process involving a postnuptial agreement, governed primarily by Section 21(1) of the Matrimonial Property Act 88 of 1984.
The Legal Mechanism: Section 21(1) Application
Unlike an antenuptial contract, which is a private agreement registered with the Deeds Office, changing your matrimonial system after marriage requires a formal application to the High Court.
The process involves a joint application by both spouses. They must request leave (permission) from the Court to change their current matrimonial property system and to authorize the execution of a new notarial contract that will govern their marriage moving forward.
What Needs to Be Proved?
The High Court does not grant these orders automatically. To protect the interests of the spouses and, more importantly, third-party creditors, the applicants must satisfy the Court on three primary points:
1. Sound Reasons for the Change
The couple must provide the Court with “sound reasons” for why they wish to change their system. Common reasons include:
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Ignorance of the law at the time of marriage (e.g., being unaware that they would be married in community of property by default).
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A change in the financial status of one spouse, such as starting a business where “In Community of Property” poses a high risk to the joint estate.
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Better protection of assets for the benefit of the family or children.
2. Notice to Creditors
One of the most critical steps in the process is ensuring that creditors are not blindsided by the change. The law requires that:
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A notice of the intention to apply for the change must be published in the Government Gazette and in two local newspapers (usually one English and one Afrikaans).
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Registered letters must be sent to all known creditors to inform them of the application.
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The Court must be satisfied that sufficient notice has been given so that any party with a financial interest in the couple’s estate has the opportunity to object.
3. No Prejudice to Third Parties
The Court must be convinced that “no other person will be prejudiced” by the proposed change. If a couple is heavily in debt and attempts to move to a system of “Out of Community of Property” to hide assets from creditors, the Court will likely deny the application. The change must be a legitimate restructuring of the marital estate, not a tactic to evade financial obligations.
The Notarial Contract
If the Court is satisfied with the application, it will grant an order authorizing the spouses to enter into a postnuptial agreement. This contract is then drafted and attested to by a Notary Public and subsequently registered in the Deeds Office.
Once registered, the new system (e.g., Out of Community of Property with or without the Accrual System) becomes the legal framework for the marriage.
While it is entirely possible to change your marital property system after the “I do’s,” the process is significantly more complex and costly than entering into an antenuptial contract before marriage. It involves legal drafting, public advertisements, and a High Court appearance.
by Jaques van den Ende