We at HFG Attorneys receive a lot of enquiries about the matrimonial property system, and if you are allowed to change it after marriage.
Let’s say, for example, that you are married in community of property and would like to change this to out of community of property due to financial reason. Are you allowed? It must be stressed that the High Court will neither grant you the order if you bring this application on illegal and fraudulent intentions, nor if the granting of such order would be to the detriment of your creditors. The accepted reasons for bringing an application of this nature are normally due to financial risks and/or income tax purposes.
The answer can be found in Section 21 of the Matrimonial Property Act, 1984 (Act No 88 of 1984). In terms of this section, you and your spouse can apply jointly for leave to change your matrimonial property system, irrespective on when and how you married.
Read the Act at www.saflii.org/za/cases/ZARMC/1984/3.pdf.
The application will be brought by your attorney in the local High Court Division to change your status as such. A draft of the proposed new contract will have to be attached to the original application in the High Court. The Court will grand such an order if it is satisfied that there are sound reasons to change the system, that there was sufficient notice to all the creditors and that it will not be to the detriment of any person if such an order is granted by the High Court.
Once the application is successful and granted by the High Court, the parties will have to conclude the new notarial contract regarding their future handling of the matrimonial property system. This contract will be registered in the Deeds Office.
It is important to note that the financial implications and legal costs may be quite high in an High Court application of this type. There should be an assessment of the situation, and a reasonability test should be done to ensure that it make financial sense to proceed with an application of this type. You also need an attorney who specialises in family law and matrimonial matters to guide you through the process.
If you have any enquiries about family law and the matrimonial property system, kindly send an email to firstname.lastname@example.org.
Source: Matrimonial Matters, LEAD 2017
(This article is an information piece and not a formal legal opinion. HFG Attorneys accepts no liability for damages caused by errors and omissions)