Change of Marital Status
How to change your marital status to another form of marriage contract:
Section 21(1) of the Matrimonial Property Act provides that a husband and wife may apply jointly to court for leave to change the matrimonial property system which applies to their marriage.
For the parties to change their matrimonial property system, the act mentions the following requirements:
- There must be sound reasons for the proposed change.
- According to South African Law, the parties who wish to become married out of community of property must enter into an Antenuptial contract prior to the marriage ceremony being concluded. If they fail to do so, then they are automatically married in community of property.
- Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.
- Sufficient notice of the proposed change must be given to all creditors of the spouses.
- The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the Application will be heard and must be given by certified post to all the known creditors of the spouses.
- Moreover, the draft Notarial contract which the parties propose to register must be annexed to their Application.
- 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 creditors of the parties must be preserved in the proposed contract, so the application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether there are sound reasons for the proposed change and whether any particular person will be prejudiced by the such change.
- Once the court is satisfied that the requirements have been met, it may order that the existing matrimonial property system may no longer apply to their marriage and authorize them to enter into a Notarial contract by which their future matrimonial property system is to be regulated on such conditions as the court may think fit.
Requirements of the court:
- The decision of Lourens et Uxor 1986 (2) SA 291 (C) sets out guidelines that the courts generally appeared to have followed about applications in terms of section 21(1) of the Matrimonial Property Act No. 88 of 1984.
The case lays out the following guidelines:
- Notice of the applications must be given to the Registrar of Deeds in terms of s97 (1) of the Deeds Registries Act 47 of 1937.
- The draft notarial contract which it is proposed to register must be annexed to the Application.
- Notice of intention to make the application must also be published in the Government Gazette and one English and one Afrikaans newspaper at least two Weeks before the date on which the application will be heard.
- The date upon which the application will be heard must be specified in the Published notice, setting out what steps an objector to the order sought must take and where the application and draft contract can be inspected.
- In addition, at least two weeks’ prior notice of the application must be given by certified post to all creditors, whether actual or contingent. A list of such creditors, verified by affidavit, shall be included in the application and proof that such notice has been given to them must be provided by an affidavit to which are annexed the relevant certificates of posting.
- Sufficient information regarding the assets and liabilities of the couple concerned must be set out in the application to enable the Court to judge whether there are sound reasons for the proposed change and whether any other person will be prejudiced by the proposed change.
- It should also be stated whether either of the applicants has been sequestrated in the past and, if so, when, and in what circumstances. The case number of any rehabilitation application must be furnished.
- It should also be stated whether there are any pending legal proceedings in which any creditor is seeking to recover payment of any alleged debt due by the couple or either of them.
- Care must be taken to motivate fully the proposed change in the existing matrimonial property system. Applicants must explain why no other person will be prejudiced by the proposed change. In any event, the order sought, and the contract which it is proposed to register, shall contain a provision which preserves the rights of pre-existing creditors.
- The application must disclose where the parties are domiciled and, if they are not resident there when the application is made, where they are resident. If there has been a recent change in domicile or residence it should be disclosed so that the Court can consider whether the application has been brought in the appropriate forum and/or whether additional notice of the application should be given. Ordinarily the application should be brought in the Court in whose area of jurisdiction the parties are domiciled and ordinarily resident.
The procedure of the application:
- Unfortunately, the application is expensive in that you and your spouse must apply to the High Court on notice to the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract having the effect of a postnuptial contract which, after registration, will regulate you knew matrimonial property system.