In terms of the South-African law prospective spouses have to conclude an antenuptial agreement, prior to getting married, in order to be married out of community of property. The default matrimonial property regime in South Africa is in community of property.
Many couples only realize that they are married in community of property after the marriage has already been concluded, alternatively some married couples wish to change their matrimonial property regime due to their circumstances which have changed during their marriage. Being married in community of property poses numerous financial risks including, but not limited to, the following:
1. Both parties’ estates merge to form one communal estate;
2. The assets of one spouse is attachable in respect of recovery of the debt of the other spouse;
3. With numerous major transactions both parties’ written consent needs to be obtained in example the purchase of immovable property;
4. Administration of a deceased estate is lengthy process and can cause various challenges for the surviving spouse who was married to the deceased spouse in community of property.
If you are currently married in community of property and wish to have your matrimonial property regime amended to out of community of property, not all is lost. The process to change a matrimonial property regime is depicted in section 21 of the Matrimonial property act 88 of 1984.
Both parties have to bring an application to the High Court for an order to grant the parties leave to conclude a Post-nuptial agreement which agreement shall then regulate their prospective new marital regime from the date of registration thereof. The parties need not attend court on the date on which the application is to be heard as counsel will be appointed for you who will appear in court on your behalf.
In order for spouses to amend their current matrimonial property regime, the Matrimonial Property Act prescribes the following requirements:
• Sound reasons to change the current matrimonial property regime must exist;
• The court must be satisfied that no other/third party will be prejudiced should the matrimonial property regime be changed successfully;
• Sufficient notice of the prospective change must be given to all creditors of the spouses as well as the registrar of deeds.
Should you wish to have your matrimonial property regime changed, kindly feel free to contact our offices on 012 993 5907, or send an e-mail to Jaques@cvhattorneys.co.za.
Jaques van den Ende