How To Change Your Marital Regime

You must apply to the High Court and sign a Notarial Contract to change your marital status. This document serves as a postnuptial agreement and will govern your newly registered matrimonial property system.

There are three sorts of marital regimes in South Africa:

• In Community of Property.
• Out of Community of Property with the accrual system.
• Out of community of Property without the accrual system.

You should note that these are only general overviews of the various marriage regimes in South Africa.

In Community of property

Both spouses have equal rights and obligations for all assets obtained during the marriage and all debts and liabilities under this regime.

This means that the spouses share all assets and debts equally, regardless of who acquired them.

You can find more information on this marriage regime at Marriage in Property Community Advantages and disadvantages.

Out of Community with the accrual system

Each spouse owns their assets and liabilities acquired before or during the marriage under this arrangement.

Any development or rise in the value of each spouse’s separate estate throughout the marriage (referred to as the “accrual”), on the other hand, is divided equally between the spouses upon the dissolution of the marriage.

You can find more information on the accrual system in “Marriages with Accrual (Plus a Step-by-Step Guide on How to Calculate the Accrual)”.

Without the accrual system

This regime is comparable to the accrual system, except that the accrual is not shared between the spouses upon marriage breakup.

Instead, each couple keeps the entirety of their respective estate.

Learn more about “Marriage Out of Community Property Without Accrual.”

Marriage in Community of Property by Default

Assume you do not have an antenuptial contract in South Africa before getting married.

In that circumstance, your marriage will be regarded as a marriage in Community of Property by South African law.

More and more couples are becoming aware of the repercussions of marrying in Community of Property.

Many couples become aware of the repercussions after marriage since they did not obtain proper legal guidance before marriage.

Changing Your Matrimonial Property Regime to Out of Community of Property with the High Court’s Permission

After marriage, you can modify your matrimonial property regime from in Community of Property to Out of Community of Property by establishing a postnuptial contract with the High Court’s authorisation as provided under Section 21(1) of the Matrimonial Property Act.

The Matrimonial Property Act, Section 21(1)

This law permits spouses to change the matrimonial property system that applies to their marriage, whether they were married before or after the statute went into effect.

Assume a judge accepts the change and all conditions, such as proper notification of creditors and no harm to others, are met. In that circumstance, spouses may engage in a notarial contract that governs their future marriage property system under the criteria set by the Court.

The law also allows spouses who were married outside of community property under an antenuptial contract or the Black Administration Act to opt into the provisions of Chapter I by executing and registering a notarial contract within two years (or such more extended period as the Minister determines) of the relevant date.

These rules will apply to the spouses’ marriage from the day of their marriage or if specified in the contract, the date of signing the notarial contract.

The net value of the spouses’ estates on the date the requirements of Chapter I apply may be disclosed in the notarial contract or a statement; however, including an asset in such a statement does not serve as proof of any right to that asset or of release under the Insolvency Act.

South African Matrimonial System Change Procedure

If you want to amend the legal structure that regulates your marriage in South Africa, you must file a High Court application.

This could include changing your marriage’s legal status, such as changing the provisions of your marriage contract.

After that, the Court will evaluate your request and decide whether or not to approve it.

Reasons to Change Your Marital Status

A couple may opt to change their marital routine for a variety of reasons.

• One common explanation is that parties executed no pre-wedding antenuptial contract (ANC), and the couple afterwards wishes to shift their regime to “out of community of property.”
• This shift could be caused by one or both parties developing independent business interests.

Changing Marital Regimes: A Timeline

It is predicted that compiling your application and postnuptial contract, as well as bringing a High Court Application, may take 2 to 3 months.

This schedule depends on the High Court’s availability, as well as any potential delays, such as the necessity for a report from the Registrar of Deeds.

Please remember that this is only an estimate, and the actual timetable may differ.

What You Can Expect Following the receipt of High Court approval

• If your marital regime modification application is allowed and the High Court provides consent, you usually have three months to register the postnuptial contract.
• You must sign the contract, register it, and notarise it after receiving consent.

It is critical to complete this process within the three-month time frame set by the Court.

Understanding the Costs of Changing Your Marital Status

The expense of drafting a postnuptial agreement should be comparable to drafting an antenuptial agreement for unmarried couples.

However, because you must file an application with the High Court, the process becomes more expensive due to legal expenses, notification to the Registrar of Deeds, and publication of notices in two newspapers and the Government Gazette.

Both spouses must apply to the High Court, serve notice on the Registrar of Deeds and any known creditors, and ask permission to sign a notarial contract with the same effect as a postnuptial contract.

This contract, if registered, will establish the couple’s new matrimonial property system.

Factors That Influence the Cost and Difficulty of Changing Your Marital Regime

If a couple’s joint estate has many creditors or assets to divide, changing their marital regime may be more complicated and more expensive.

This is because addressing these issues may necessitate more time and resources.

The estimated process cost assumes no interested parties will object to the application.

However, suppose the application is opposed for whatever reason, such as a creditor’s fear that the requested alteration will jeopardise their claim. In that instance, the procedure could become more time-consuming and costly.

It is critical to provide your legal team with all relevant facts before filing the application to avoid potential opposition and assure the process’s success.

If the application is opposed, you may have to pay additional legal fees, and the application’s outcome may be unknown.

Under the Matrimonial Property Operate No. 88 of 1984, both parties must apply to the High Court for permission to sign a Notarial Contract, which will act as a postnuptial contract (ANC) and control their new matrimonial property system once it is registered.

In such instances, the decision in Lourens et Uxor 1986(2) SA 291 (C) gives recommendations for the Court to follow.

• Creditors must be given the right to decline the modification, and this must be reflected in the proposed contract.
• You must justify the change.
• You must notify the Registrar of Deeds of your desire to amend, which must be published in the Government Gazette and two local newspapers at least two weeks before the hearing and certified mailed to all known creditors.
• The application must include a draft Notarial Contract.
• You must protect creditors’ rights in the proposed contract, and it must be certified that the modification will harm no other person.

Assume the Court rules that these conditions have been met. In that circumstance, it may authorise the parties to enter into a Notarial Contract and declare that the existing matrimonial property system does not apply to their marriage.

To be effective, the Notary must register the Notarial Contract at the Deeds Office.

Documentation Needed to Change Marital Status

We will require the following preliminary papers and information to compile the relevant documentation:

• Copies of identification documents or passports for both parties.
• Copy of marriage certificate.
• Reasons why you did not register an antenuptial contract before the marriage.
• Reasons for wanting to execute a postnuptial contract now.
• Copies of proof of address for both parties.
• Income tax numbers for both parties (if applicable).
• Occupations and job descriptions for both parties.

To summarize, altering your marital regime is a legal process that necessitates a High Court application and the signing and registering a Notarial Contract.

To qualify for the amendment, you must meet specified standards, such as giving creditors the ability to decline the change, presenting valid reasons for the change, and demonstrating that the adjustment would not prejudice anybody else.

Read More:

Protecting Your Assets with an Antenuptial Agreement in South Africa