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Family Law & Estates

Change of Marital Status

Couples married in community of property are not necessarily locked into that regime for life. A formal High Court process allows it to change.

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Why couples apply to change their regime

Many couples only become aware of the consequences of marrying in community of property after the wedding, once they did not obtain proper legal guidance beforehand. 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, provided certain requirements are met.

What the application must show

  • Sound reasons exist for the proposed change
  • Notice of the intention to change has been given to the Registrar of Deeds and published in the Government Gazette and two local newspapers, at least two weeks before the hearing
  • Known creditors have been notified by certified post
  • No other person will be prejudiced by the proposed change
  • The rights of existing creditors are preserved in the proposed contract

The draft notarial contract

The couple's proposed notarial contract, setting out their new matrimonial property system, must be annexed to the court application. Once the court is satisfied the requirements are met, it will order that the existing regime no longer applies and authorise the couple to register the new contract.

An important note

This type of application is more expensive and time-consuming than signing an antenuptial contract before marriage, given the court process, advertising requirements and notarial work involved. It remains, however, the only lawful route to change your matrimonial property system once married.

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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.

Timelines vary, but the advertising periods, notice requirements and court process typically mean the application takes several months.

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.

Yes, if the court is not satisfied the requirements are met, or if a creditor or other party would be prejudiced by the change.

No, the changed matrimonial property system generally applies from the date the court order and notarial contract take effect, not retroactively.

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

The formal document, prepared by a notary, that records the couple's new matrimonial property system once the court has granted leave to change it.

This depends on whether the application is opposed; many unopposed applications can proceed largely on paper with limited court appearances.

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