South African law deems a couple as being married in community of property, if spouses do not expressly specify and actively register an ante-nuptial contract. This means that one joint estate belongs to both spouses in equal undivided shares, increasing the financial risk and exposure in the event of insolvency of one party.
Couples can choose to amend their marital regime to one of Out of Community of Property – with or without the accrual system. This will depend on which accrual option is most suited to the parties’ circumstances.
Amending your marital regime is provided for in the Matrimonial Property Act No. 88 of 1984. More specifically, section 21 (1) of the Act provides that a married couple may jointly apply to court in order to amend the existing matrimonial property regime.
The Act further provides various requirements that have to be met in order to qualify for the amendment such as:
- A sound reason for the proposed change.
- Notice of the intention to amend must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers, and must be given by certified post to all known creditors.
- Draft notarial contract must also be annexed to their application.
- Rights of creditors must be preserved in the proposed contract.
- Confirmation that no other person will be prejudiced by the proposed change.
- The application must contain sufficient information about both parties’ assets and liabilities.
These are just a few of the requirements that have to be met in order for an amendment to be affected. Our Matrimonial Law team are experts at all matters of law concerning couples and the family. If you need assistance changing your marital regime, contact our experienced attorneys today.