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Couples who are interested in an antenuptial contract often make the
decision to get one before they are married. That is the ideal scenario.
However, some couples may have already gotten marriedin community of
property, and later decide to change to another form of marriage contract.
Can it be done?
The Matrimonial Property Act allows
a husband and wife to apply jointly to court for leave to change the
matrimonial property system which applies to their marriage.
What are the requirements?
- According to South African law, the parties who
wish to become married out of community of property must enter into an antenuptial
contract prior to the marriage ceremony being concluded.
- If they fail to do so then 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.
In order for the parties to change
their matrimonial property system, the act mentions the following requirements:
What is the downside?
- There must be sound reasons for
the proposed change.
- The Act 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
- The court must be satisfied that no
other person will be prejudiced by the proposed change. The court must
be satisfied that the rights of creditors of the parties must be preserved in
the proposed contract so 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.
The downside is that the
application is expensive because you and your spouse have to apply to the
High Court on notice to the Registrar of Deeds and all known creditors, to be
granted leave to sign a Notarial Contract having the effect of a postnuptial
contract. You must also have solid grounds for wanting to switch to an
antenuptial contract. Therefore, it’s not something you can do on a whim.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
- The Matrimonial Property Act 88 OF