Section 21 of the Matrimonial Property Act 88 of 1984 provides that spouses may apply jointly to the High Court, with the necessary jurisdiction, for leave to amend their matrimonial property regime. In order for such an application to succeed, in order to amend the regime from in community of property to out of community of property, a number of requirements have to be met, namely:
- There must be sound reasons for the proposed change, e.g. business reasons,or why parties didn’t enter into an antenuptial contract (hereinafter “an ANC”)when they got married etc.;
- Notice of the intention to change the regime must be given to the Registrar of Deeds as well as all creditors of the joint estate.
- Notice of the application must be published in the Government Gazette and two local newspapers, at least two weeks prior to the date on which theapplication will be heard.
- The draft ANC, which parties propose to register, must be annexed to the application.
- Changing of the matrimonial property regime must not be prejudicial to any third party and/or creditor.
- The application must contain sufficient information about the parties’ 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 and/or creditor will be prejudiced by the change.
If the Court is satisfied that all the above requirements have been met, and the application is not opposed to by any third parties, it will order that the existing matrimonial property regime no longer applies to the marriage and authorize the parties to enter into- and register an ANC, more specifically the draft ANC that was annexed to the court application, by which the parties’ future matrimonial property regime will be regulated.
If the application is granted, it means that any existing creditor of the parties cannot be prejudiced by the change, so any existing debt still remains the debt of both parties.
To bring such an application is, however, an expensive exercise, as it comprises of a lot of drafting work (drafting of the application and the supporting affidavit(s) thereto as well as drafting an ANC), advertisements must be placed in numerous newspapers and it is an application brought in the High Court.
There have been many such applications to change the marital regime from in community of property to out of community of property (with or without the accrual, whichever the parties prefer), however it is uncertain whether parties can apply to the High Court to change the regime from out of community of property with the accrual system, to out of community of property without the accrual system. The Act does however not specify in this regard. It would be interesting to hear what the Court would decide if it was to hear such an application.