1. Introduction
In South Africa a rebuttable presumption exists that a marriage is governed by the marriage in community of property proprietary system unless the presumption is refuted.1 This presumption can be refuted by a number of ways, including having entered into a valid Antenuptial Contract and having registered a postnuptial contract.2 In many instances parties enter into a marriage being unaware of the different proprietary regimes and the effect that this may have at the dissolution of the marriage, either by death or by divorce. An antenuptial contract can be the solution to some of the disadvantages a marriage in community of property may have, however many married parties without fault of their own think that it’s to late to enter into an antenuptial contract. Section 21(1) of the Matrimonial Property Act 88 of 1984 (hereinafter “the Act”), offers a solution to parties who are already married and wish to have their estate be protected by the laws of an out of community of property proprietary regime.3
2. Application
To change a marital regime postnuptially parties must jointly apply to court in terms of Section 21(1) of the Act and in their application, they must comply with a number of requirements.4 The husband and wife must in their application provide a sound reason for the proposed change, they must prove that sufficient notice of the proposed change has been given to all their creditors, and that no other person will be prejudiced by the proposed change.5 It is clear from the act that the intent of the parties may not be to prejudice any of its creditors who may have a claim against the joint estate, that shall no longer exist should the parties application be successful.
3. Procedural steps
In Ex Parte Lourens et Uxor and four other similar cases 1986 (2) SA 291 (C)the court held numerous procedural steps that must be taken before and on the date of the application being heard, these steps are to notify the Registrar of Deeds of the parties intended application, to publish a notice of intention to make the application in the Government Gazette, one local Afrikaans newspaper and one local English newspaper at least two weeks prior to the application being heard and to provide prior notice of the application to the parties’ creditors by certified post at least two weeks prior to the application being heard, proof of which must all be contained in the application on date of being heard.6
4. Conclusion
The most important requirement of such an application is the absence of prejudice, the parties must provide a court with a clear picture of their assets and liabilities and must explain why no other person will be prejudiced by such an application.
Contact Malan Lourens Viljoen Inc. should you require assistance in any application to execute a postnuptial agreement or if you are uncertain about the different matrimonial property regimes.
Annami den Heyer (B Com Law & LLB) - Candidate Attorney
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.
1Skelton et al. 88.
2Skelton et al 88.
3Section21(1) of the Matrimonial Property Act 88 of 1984.
4Simon Roy Arcus v Jill Henree Arcus (4/2021)[2022]ZASCA 9 (21 January 2022) para 15.
5Section21(1) of the Matrimonial Property Act 88 of 1984.
6Ex Parte Lourens et Uxor and four other similar cases 1986 (2) SA 291 (C).