In the prevailing economic climate, it is not uncommon for couples to want to alter their matrimonial property regime to secure their financial and proprietary interests. Specifically, couples married in community of property may decide that they’d prefer to be married out of community of property in order to keep their assets and liabilities separate, especially if one spouse regularly incurs debt on behalf of the joint estate.
Under South African law, however, parties to a marriage cannot alter their marital regime by concluding a postnuptial contract without authorisation from the courts. Instead, section 21 of the Matrimonial Property Act requires married couples to jointly launch an application in the High Court in the jurisdiction in which they reside for authorisation to change their matrimonial property system.
In their application, the parties must provide sound reasons for the proposed change. To that end, they must fully disclose their financial position by detailing their assets and liabilities, indicating whether or not they have been sequestrated, and specifying whether there is pending litigation against either of them by a creditor. In addition to this, the parties are required to furnish all creditors with sufficient notice of the proposed change. A copy of the parties’ postnuptial contract prepared by an attorney, and which confirms that the rights of any creditors will not be adversely affected, must be attached to the application.
Crucially, the court will only grant the application if is satisfied that no third parties will suffer prejudice due to the proposed change.
For expert legal assistance with matrimonial matters, contact our family law attorneys at familylaw@stbb.co.za.
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