While changing your marital regime can be a costly process and should be avoided, it is possible thanks to Section 21(1) of the Matrimonial Property Act. This act allows you and your spouse to change your marital property system after you are married.
If you want to change your marital property system, here’s what you need to know:
In order to change your marital property system, both you and your spouse have to apply to the High Court on notice of the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract, which will regulate your new marital property system.
In order for the parties to change their matrimonial property system, the following requirements must be met:
- There must be sound reasons for the proposed change.
For example, if you are getting married soon and you want to be married out of community of property, you will have to draft and sign your antenuptial contract before you get married. If you don’t do this, you will be automatically married in community of property. Of course, many people are unaware of this provision. You need to be able to convince the court that it was your express intention to be married out of community of property.
- Sufficient notice of the proposed change must be given to all creditors of the spouses.
Notice must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks before your application is heard in court
- 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 your creditors must be preserved in the proposed contract. The application must therefore contain sufficient information about your assets and liabilities.
The cost of drafting the new marital property system should be the same as the cost of an antenuptial contract entered into before marriage. However, because the application to change the marital property system needs to be made to the High Court, it will include legal fees as well as the costs of publishing notices in two newspapers as well as the Government Gazette.
Before you start the process of changing your martial regime, you’ll need the following documents:
- Copies of identity documents or passports for both the parties;
- Copy of marriage certificate;
- The reason why an antenuptial contract was not registered prior to your marriage;
- The reasons that you wish to now execute a postnuptial contract;
- Copies of proof of address for both the parties;
- Income tax numbers for both parties (if applicable);
- Occupations / job descriptions for both parties;
- The full names and date of birth of your children (if applicable);
- The full particulars of assets that both of you currently own (including movables, immovables, investments and cash); and
- Full details of all existing creditors (together with supporting documentation such as most recent statements, etc).
If you would like advice or guidance on changing your marital regime, please feel free to contact us!