Need to Change your Matrimonial Regime to “Out of Community of Property”…?

As Life Changes, so does your Needs…

The Matrimonial Property Act provides that a husband and wife may apply jointly to the High Court for leave to amend their matrimonial property regime if the following requirements are met:

• There must be sound reasons for the proposed change.
• Notice of the intention to change must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard, and must be given by certified post to all known creditors.
• The draft notarial contract, which the parties propose to register, must also be annexed to their application.
• No other person will be prejudiced by the proposed change.
• The rights of creditors must be preserved in the proposed contract.
• The application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the change.

When the court is satisfied that the requirements have been met, it will order that the existing matrimonial property regime no longer applies to the marriage and authorise the couple to enter into an ANC by which their future matrimonial property regime will be regulated.

Note that such an application is expensive. Section 21(1) of the Matrimonial Property Act 88 of 1984 provides that spouses may apply jointly to court for consent to vary the matrimonial property system which applies to their marriage.

The decision of Lourens et Uxor 1986 (2) SA 291 (C) confirm the guiding principles that the court follow with regard to applications in terms of section 21(1) of the Matrimonial Property Act No. 88 of 1984.

The court where the application is brought (the High Court) must be satisfied that no other person will be prejudiced by the future change. The court must be satisfied that the rights of creditors of the parties must be preserved in the planned contract so the application must contain adequate information about the parties’ assets and liabilities to allow the court to determine whether or not there are good reasons for the intended change and whether or not any other person will be prejudiced by such amendment.

If the court is content that the requirements have been met, it can order that the existing matrimonial property system may no longer apply to the marriage and approve that the parties may enter into a Notarial contract by which their future matrimonial property regime will be regulated.

The application must also reveal where the parties are domiciled and, if they are not resident there when the application is made, where they are resident. If there has been a recent change in domicile or residence it should be disclosed so that the Court can consider whether the application has been brought in the appropriate forum and/or whether or not additional notice of the application should be given.