Are you looking to change your marriage from in community of property to out of community of property, but do not know if this is possible? This article will detail the possibilities of changing your marital regime, the necessary requirements, and legal fees involved in the process.
The Law As It Stands.
The Matrimonial Property Act 88 of 1984 provides that spouses may apply jointly to the court for consent to change the matrimonial property system which applies to their marriage. A couple looking to change their marital property regime from in community of property to out of community of property must apply to the High Court for permission to do the change. Both spouses must agree and consent to applying to the High Court jointly – this means that neither spouse can initiate this process alone.
The spouses may apply to the High Court jointly to amend their matrimonial property system if the following requirements are met:
● There was a sound reason for the proposed change.
● Notice of the intention to change was given to the Registrar of Deeds, published in the government gazette and two local newspapers at least two weeks before the date on which the application would be heard and given by certified posts to all known creditors.
● The draft notarial contract, which the parties propose to register, must be annexed to their application.
● The couples need to show that no other person will be prejudiced by the proposed change.
● The rights of creditors must be preserved in the proposed contract, which means that all creditors need to be informed of the proposed change.
● The application must contain sufficient information about the spouse's 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.
When the requirements have been met and the court is satisfied, it will order that the existing matrimonial regime no longer applies to the couple and authorize the couples to enter into an antenuptial contract by which the marriage will be regulated.
Legal Fees
The process of changing your marital property regime is costly and may range from R15000- R30 000 in legal fees. It may also take up to three months.
Legal Standpoint Tip: before you get married acquaint yourself with the different types of matrimonial property systems South Africa offers, to make an informed decision.
References
1. Matrimonial property Act 88 of 1984
