How to change your marriage regime in South Africa

The process and requirements for changing a marriage regime.

Many married couples may wish to change their marriage regime (or type) after getting married – for a variety of reasons. 

In the current financial climate in South Africa, Family Lawyers receive many requests from parties to a marriage who would like to change their marriage regime to protect their financial interests. Couples who are, for example, married in community of property, now wish to be married out of community of property – in other words, conclude an antenuptial contract. 

 In South Africa, the general rule is that parties to a marriage cannot change their marriage regime by way of a postnuptial contract. The only way for them to lawfully change their marriage classification, is to launch an application to the High Court in terms of Section 21 of the Matrimonial Property Act 88 of 1984. Sound reasons for the proposed change, sufficient notice to creditors, and the fact that no other person should be prejudiced by such a change, must be addressed in that application to the Court.  

The Court application is brought by both spouses jointly in the jurisdiction of the Court in which the parties are currently living. They will need to make a full disclosure of their financial position, including: 

  • A detailed explanation of all assets and liabilities, which should be individually specified, reflecting the name and address of any creditor and the amount of the liability. 
  • Whether any of the parties has been sequestrated. 
  • Whether there is any pending litigation against any of the parties by a creditor. 
  • If there is any material change in any of the parties’ financial position prior to the hearing of the matter, same should be disclosed in a supplementary affidavit.

A copy of a postnuptial agreement, properly prepared by a notary attorney, must also be attached to the application. It is important that the postnuptial contract contains a declaration that the rights of any creditors will not be affected.  

Notice will be given to the Registrar of Deeds, all known creditors and published in the Government Gazette and in local newspapers, making this type of application quite costly in some instances.  

If you would like to change your marriage regime after being married, consult an experienced family law attorney on the way forward as there are several legal aspects to take into account when preparing such your application. 

Article by Natasha Truyens
Senior Associate Attorney | Barnard Incorporated Attorneys
Email: natasha@barnardinc.co.za
Mobile: 060 891 9917 

NATASHA TRUYENS
Senior Associate

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