Most of us hope to one day hear the sounds
of wedding bells as we sing our vows while lovingly staring into the eyes of
our significant other. Marriage is a sacred union between people who devote
themselves to each other in front of the law and their gods. However, sometimes
between all the wedding planning and excitement, people forget the legal
implications of such a union and only realise the consequences once they have
tied the knot.
In South Africa we have 2 types of marital
regimes, in community of property and out of community of property. There are
many differences between the two marital regimes but the main differences are
that the in community of property regime entails that the joint estate of the
parties, upon dissolution of the marriage, are divided 50/50 while with the out
of community of property regime there are two variations, with the inclusion of
the accrual system and with the exclusion of the accrual system. The difference
is that without the accrual system everything that is registered in the names
of either of the party’s remains theirs after dissolution of the marriage. Out
of community with the accrual system means that each party registers a starting
value at the inception of the marriage and upon dissolution, the personal
estates of the parties are calculated and the difference between the two
estates are divided between the parties. The out of community of property
regimes are registered by way of an antenuptial contract or ANC.
If you get married without considering
which marital regime you wish to register, then the automatic marital regime is
in community of property. If you wish to change the marital regime you will
have to seek legal advice regarding same. Generally you are not allowed to
register and ANC after the marriage is concluded. However you can change your
martial regime from in community of property to out of community of property
through the registration of a postnuptial contract with the permission of the
High Court of South Africa.
An application is made to the High Court by
both parties, to ask the Court to grant the parties leave to sign a Notarial
Contract (having the effect of a postnuptial contract), which after
registration will regulate their new matrimonial property system.
In order for the parties to change their
matrimonial property system, the following requirements will have to be met:
sound reasons for the proposed change must exist, sufficient notice of the
proposed change must be given to all creditors as well as the Registrar of
Deeds and the court must be satisfied that no other person will be prejudiced
by the change in the matrimonial property system.
Once such an order is granted by the court,
the postnuptial contract is executed and thereafter registered in the Deeds
Office.
So if you took the leap without looking
first and you now wish to change your marital regime, please don’t hesitate to
contact us.