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Family Law · 12 March 2026

Changing Your Matrimonial Property Regime

Many couples only discover the consequences of being married in community of property once it is too late to sign an antenuptial contract. There is still a lawful route to change it.

More and more couples are becoming aware of the practical consequences of marrying in community of property only after the wedding — often when a spouse's business risk, existing debt, or a major purchase brings the issue into focus. Because an antenuptial contract must be signed before marriage, couples in this position cannot simply sign one after the fact.

The section 21 application

Section 21(1) of the Matrimonial Property Act 88 of 1984 allows spouses to apply jointly to the High Court for leave to change their matrimonial property system. This is sometimes referred to informally as a "postnuptial contract", though the correct route is a court application followed by registration of a notarial contract.

What the court needs to see

  • Sound reasons for the proposed change
  • Proof that notice was given to the Registrar of Deeds, and published in the Government Gazette and two local newspapers, at least two weeks before the hearing
  • Proof that known creditors were notified by certified post
  • Confirmation that no other person will be prejudiced by the change
  • A draft notarial contract setting out the new matrimonial property system

Is it worth it?

This process is more expensive and slower than signing an antenuptial contract before marriage, given the advertising, notice and court requirements involved. For couples with significant asset or liability exposure between spouses, however, it can still be a sound long-term decision.

If you are considering this route, our family law team can talk through whether your circumstances are likely to meet the court's requirements before you commit to the process.

Yes, spouses may apply jointly to the High Court under section 21(1) of the Matrimonial Property Act, provided the legal requirements are met.

Yes, known creditors must be notified by certified post, and the intended change must also be published in the Gazette and two local newspapers.

It is generally more costly than signing an antenuptial contract before marriage, due to the court application, advertising and notarial requirements.

Courts have accepted reasons such as protecting one spouse from the other's business risk or reorganising family financial affairs, assessed on the specific facts.

Given the advertising periods, notice requirements and court process, it typically takes several months from application to registration.

Yes, a creditor or other affected party may oppose the application if they believe they would be prejudiced by the change.

No. An antenuptial contract is signed before marriage; this route is a court-approved change after marriage, followed by registering a new notarial contract.

The court order and new contract set out how the matrimonial property system will apply going forward; existing joint assets don't automatically split without further agreement.

No, the application must be brought jointly by both spouses together.

An attorney experienced in matrimonial property matters can assess whether your circumstances are likely to meet the court's requirements before you commit to the process.

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