Change of Marital Status

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.

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.

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.

If the couple fail to enter into an Antenuptial Contract before they are married, they are automatically married in community of property. Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.

Section 21(1) of the Matrimonial Property Act 88 of 1984, requires that notice of the parties’ intention to change their matrimonial property regime 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 the known creditors of the spouses. Moreover, the draft Notarial Contract that the parties propose to register must be annexed to their application.

The court must be satisfied that the rights of creditors of the parties must be preserved in the proposed contract. The application must therefore 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 such change.