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The section 21 court process in South Africa, creditor protection, notarial contracts, and how it differs from a postnuptial ANC
South African spouses cannot simply sign a new antenuptial contract after marriage to change their matrimonial property regime — the correct route is a joint court application under section 21(1) of the Matrimonial Property Act 88 of 1984, which the court may grant if there are sound reasons, sufficient notice to creditors, and no prejudice to any other person. If the application succeeds, the spouses may then execute a notarial contract regulating their future matrimonial property system, registered in the Deeds Registry.
This is materially different from signing an ANC before marriage. It is also different from asking a court under section 88 of the Deeds Registries Act 47 of 1937 to allow postnuptial execution of terms that the intended spouses had already agreed before the marriage.
This article provides general information about South African law. It does not constitute legal advice and does not predict the outcome of an individual application.
| Question | General position |
Can spouses change their matrimonial property regime after marriage? | Yes, but ordinarily only through a joint court application under section 21(1) of the Matrimonial Property Act. |
Can we simply sign a new ANC after the wedding? | No. An ANC is concluded before marriage. A private post-marriage agreement cannot by itself alter the existing matrimonial property regime. |
What must the court be satisfied about? | There must be sound reasons for the proposed change, sufficient notice to creditors, and no prejudice to any other person. |
What happens if the application is granted? | The court may authorise the spouses to execute a notarial contract regulating their future matrimonial property system, subject to conditions. |
Must creditors agree to the change? | Creditors must receive sufficient notice and their rights must not be prejudiced. They may object, but they do not have an automatic veto; the court decides whether the statutory requirements are met. |
Is section 88 the same procedure? | No. Section 88 is aimed at postnuptial execution of terms that were already agreed before marriage. Section 21 is used to change an existing matrimonial property regime. |
Does section 21 apply to customary marriages? | It can. The Constitutional Court in VVC v JRM confirmed the importance of section 21 judicial oversight where spouses seek to change the proprietary consequences of an existing marriage. |
How long does it take? | There is no universal fixed period. Timing depends on the court division, notices, creditor responses, preparation of the application, and registration steps. |
A matrimonial property regime determines how spouses’ assets, liabilities and financial growth are treated during the marriage and, where relevant, when the marriage ends.
The principal civil-law regimes are marriage in community of property, marriage out of community of property with the accrual system, and marriage out of community of property without the accrual system.
Section 21 is not confined to one direction of change. Depending on the circumstances and the relief sought, spouses may seek to move from in community of property to out of community of property, from out of community of property without accrual to a regime including accrual, or in another legally permissible direction. The court must still be satisfied that the statutory requirements are met.
The legal issue is therefore not merely whether both spouses agree. Their agreement is necessary for a joint section 21 application, but it is not sufficient on its own. The interests of creditors and other affected persons are deliberately built into the statutory process.
An antenuptial contract is, by definition and function, concluded in contemplation of a future marriage. Once the marriage exists, the spouses are already subject to a matrimonial property regime.
The Constitutional Court reaffirmed this in VVC v JRM and Others (CCT202/24) [2026] ZACC 2; 2026 (3) BCLR 234 (CC). The Court emphasised that spouses cannot use a private agreement concluded during an existing marriage to bypass the judicial safeguards required for a change in matrimonial property regime. Where section 21 applies, judicial oversight is central to an effective change.
This matters because a post-marriage private agreement may express what the spouses want, but it does not by itself replace the legal proprietary regime that binds them and third parties.
The spouses must place sufficient facts before the court to explain why the proposed change is sought. “Sound reasons” are not confined to one closed list; the adequacy of the reasons depends on the facts of the particular case.
Examples may include a genuine failure to appreciate the legal consequences of the existing regime before marriage, changed commercial circumstances, or a considered decision that a different regime is more appropriate for the spouses’ future financial affairs. The application should explain the history honestly and fully rather than rely on a bare statement that the parties now prefer another regime.
Section 21 protects creditors because changing a matrimonial property regime can affect the estate against which a creditor expected to enforce a claim.
The application therefore requires proper disclosure of creditors and sufficient notice of the proposed change. The practice developed in Ex Parte Lourens et Uxor and Four Other Similar Cases 1986 (2) SA 291 (C), and applied in later matters, commonly includes formal notice to creditors, publication of notice of the intended application, notice to the Registrar of Deeds, and attachment of the proposed notarial contract.
The precise procedural steps and form of notice should be checked against the current practice directives and requirements of the court division in which the application is brought. The important statutory point is that creditors must have sufficient notice and an opportunity to protect their interests.
The court must also be satisfied that no other person will be prejudiced by the proposed change.
This is wider than simply asking whether a creditor objects. The application should provide enough information about the spouses’ assets, liabilities, pending claims and financial position to allow the court to assess the practical consequences of the proposed change.
Existing creditor rights are not simply erased because spouses prefer a different matrimonial property regime. A court may impose conditions designed to preserve those rights.
Although the detail may differ between court divisions and individual matters, a properly prepared section 21 application ordinarily requires much more than a short affidavit stating that both spouses consent.
The papers commonly deal with the marriage, the existing matrimonial property regime, the proposed new regime, the reasons for the change, both spouses’ assets and liabilities, known creditors, any pending litigation or claims, the steps taken to notify affected parties, and the terms of the proposed notarial contract.
A draft of the proposed notarial contract is ordinarily placed before the court so that the court can see how the spouses intend their future matrimonial property system to operate.
If there are objections, complex creditor issues, insolvency concerns, disputed ownership questions or inadequate disclosure, the application may become materially more complicated.
Ex Parte Lourens et Uxor and Four Other Similar Cases 1986 (2) SA 291 (C) remains an important procedural authority for section 21 applications.
The case developed safeguards intended to ensure that the court is properly informed and that creditors have a meaningful opportunity to object. Those safeguards have included notice to the Registrar of Deeds, publication of the intended application, direct notice to creditors, disclosure of assets and liabilities, and filing the proposed notarial contract.
Lourens should not, however, be reduced to a rigid national checklist divorced from current practice. Court directives and procedural requirements can differ, and the application must be prepared for the particular division and circumstances.
The distinction between section 21 of the Matrimonial Property Act and section 88 of the Deeds Registries Act is important.
Section 88 permits a court, subject to conditions, to authorise postnuptial execution of a notarial contract having the effect of an ANC where the terms had already been agreed by the intended spouses before the marriage. It is therefore concerned with formalising a pre-marital agreement that was not properly executed before the wedding.
Section 21, by contrast, is used where spouses want to change the matrimonial property system that already applies to their marriage.
A couple who never agreed on ANC terms before marriage cannot use section 88 as a shortcut to create a new matrimonial property regime after the event. Where the object is a genuine post-marriage change, section 21 is the relevant mechanism.
A successful court application is not usually the end of the process.
The spouses must execute the authorised notarial contract in accordance with the court order and the applicable deeds-registration requirements. The contract must then be registered in the Deeds Registry within the period authorised or permitted by law and the court order.
Where the new contract replaces or amends an existing ANC, the Deeds Registries Act provides for the existing contract to be cancelled or appropriately endorsed upon registration of the section 21 contract.
The exact wording of the court order and notarial contract therefore matters. The spouses should not assume that obtaining the order alone has completed every registration step.
The Constitutional Court’s 2026 decision in VVC v JRM is particularly important for customary marriages.
The Constitutional Court held by majority that parties who were already married under customary law could not validly alter the proprietary consequences of that existing marriage merely by executing what purported to be an ANC before a later civil marriage. Section 21 of the Matrimonial Property Act provides the judicially supervised mechanism for changing an existing matrimonial property regime where it applies.
Rogers J dissented, with Madlanga ADCJ and Opperman AJ concurring in the dissent, on aspects of the interpretation and effect of section 10 of the Recognition of Customary Marriages Act. The article therefore relies on the majority holding while recognising that the judgment was not unanimous.
The case reinforces a broader principle: the timing and legal status of the marriage matter. A document labelled an “ANC” cannot simply be used after an existing marriage has already created proprietary consequences.
The documents required will depend on the case and the court division, but preparation commonly includes:
Full and accurate disclosure is particularly important because the court must be able to assess both the reasons for the change and the risk of prejudice to third parties.
There is no reliable universal timeframe for a section 21 application.
The duration depends on how quickly the financial information can be assembled, the applicable notice requirements, publication and service arrangements, the court division’s timetable, whether the Registrar of Deeds raises issues, whether any creditor objects, and how quickly the authorised notarial contract can thereafter be executed and registered.
An unopposed and well-prepared application will ordinarily be more efficient than one involving incomplete disclosure, creditor disputes or contested facts. Any timeframe quoted before those issues are known should therefore be treated as an estimate rather than a guarantee.
A section 21 change is materially more involved than preparing an ANC before marriage.
The total cost can include attorney work for the court application, counsel where required, publication and service costs, notarial work, Deeds Registry fees and related administrative expenses. The amount also depends on the complexity of the spouses’ estates, the number of creditors, whether objections are received and whether the matter becomes opposed.
For that reason, it is more useful to obtain a matter-specific estimate once the proposed change, asset and liability position, creditor profile and court division are known than to rely on a single generic price.
Potentially, yes. Section 21 allows spouses to jointly seek a change to the matrimonial property system, but the court must be satisfied about sound reasons, creditor notice and absence of prejudice.
A section 21 application may be used to seek a change to a regime that includes accrual, subject to the court’s approval and the terms of the authorised notarial contract.
A section 21(1) application is a joint application by the spouses. If one spouse does not agree, this is not the procedure for unilaterally imposing a new matrimonial property regime.
A creditor may object and the court must consider potential prejudice. The creditor does not have an automatic veto, but a real risk of prejudice may prevent the statutory requirements from being satisfied or may lead to protective conditions.
Not to change the matrimonial property regime. A private agreement concluded during the marriage cannot by itself replace the regime that already applies.
That may raise a different remedy under section 88 of the Deeds Registries Act, which should be assessed separately from a true section 21 change.
No. The type of marriage, the existing regime, the proposed change, the spouses’ financial circumstances and the rights of third parties all matter. Customary marriages may also require careful consideration of the Recognition of Customary Marriages Act and VVC v JRM.
Martin Vermaak Attorneys Inc. advises on South African matrimonial property matters, including antenuptial contracts, accrual, postnuptial changes and court applications under section 21 of the Matrimonial Property Act.
Before launching an application, it is important to establish the existing regime accurately, identify the change the spouses want to achieve, understand the creditor position, and determine whether section 21 or another remedy is legally appropriate.
Early advice can also help identify issues that may complicate the application, including substantial debts, business interests, pending litigation, insolvency concerns or disagreement about ownership of assets.
For related guidance, see MVA’s articles on Antenuptial Contracts South Africa and Can You Sign an ANC After a Customary Marriage?.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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