The choice between available marriage regimes is an important one, as it determines spouses’ liability towards creditors of the other, rights to deal with matrimonial property, and entitlement to assets of the estate(s) upon dissolution of the marriage by death or divorce.
All marriages in South Africa are in community of property, unless the spouses can prove the existence of a valid antenuptial agreement in terms of which community of property and/or community of profit and loss are excluded. Fortunately, spouses who by choice or inadvertently got married in community of property have the option to change the matrimonial regime applicable to their union by way of an application to court. The Matrimonial Property Act, Act 88 of 1984 (“the Act”) enables the husband and wife to jointly apply to court for leave to change their matrimonial regime.
The Court in the Lourens et Uxor case gave the following guidelines with regards to an application in terms of Section 21 of the Act:
- The Registrar of Deeds must be given notice of the application in terms of Section 97(1) of the Deeds Registries Act 47 of 1937;
- The draft postnuptial agreement must be attached to the parties’ application;
- The notice of the parties’ intention to bring the application must be published in the Government Gazette, one (1) English newspaper and one (1) Afrikaans newspaper at least two (2) weeks prior to the date on which the application will be heard;
- It is important that the published notice contains the date on which the application will be heard, the steps available to a possible objector to the proposed change and an indication where the application and draft postnuptial agreement can be inspected;
- All creditors of the Parties (whether actual or contingent) must be notified, by prepaid registered post, of the application at least two (2) weeks prior to the date on which the application will be heard. The Parties, in their application and under oath, must provide a list of all such creditors and provide proof that notice was given to each of them by, for example, attaching the prepaid registered post slips to their affidavit;
- The Parties must furthermore provide detailed information regarding their assets and liabilities and acceptable reasons should be advanced as to why the court should exercise its discretion to grant the relief claimed and to determine whether any third party will be prejudiced by the proposed change;
- The Parties must also disclose whether or not anyone of them had been sequestrated in the past and if there are any pending legal proceedings against them by any creditor for the recovery of any debt due;
- The Parties must satisfy the Court that no other party will be prejudiced by the proposed change. The order sought by the Parties and the proposed contract to be registered, shall contain a provision which preserves the rights of any pre-existing creditors; and
- The application should be brought in the Court in whose jurisdiction the parties are domiciled.
As a change to the marriage regime affects a person’s status, such change cannot be effected without an order of the High Court. . It must be noted that these applications tend to be expensive and lengthy in duration. In order to avoid unnecessary costs and risks, couples intending to get married would be well advised to consult with an attorney before they get married in order to obtain advice on the available marriage regimes and to timeously execute and register a valid antenuptial agreement, should they so prefer
Nihann van Rooyen
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