Couples intending to get married in South Africa have an option of choosing the matrimonial property regime that they wish to govern their marriage. The matrimonial property regime of a married couple will have an effect of how the couple may contract with third parties and it can also have an effect on how each couple’s property will be distributed at the end of the marriage either through divorce or death.
The default matrimonial system in South Africa is in-community of property. If couples do not want their matrimonial property regime to be in-community of property, the couple will have to conclude an antenuptial contract before the conclusion of their marriage stating that they want their matrimonial property regime to be out of community of property with accrual or out of community of property excluding accrual.
Changing your matrimonial property regime
Many people are unaware of the different matrimonial property regimes that are available nor do they understand the legal consequences thereof. It may be only after the conclusion of the marriage that they become aware of their options and would then like to change their marital regime. Section 21 of the Matrimonial Property Act, 88 of 1984 (“MPA”) allows couples to make a joint application to a High Court requesting to change their matrimonial property regime. The court may allow the couple to change their matrimonial property regime if the following requirements are met:
· there are sound reasons for the proposed change;
· the couple notify the Registrar of Deeds of their intention to change their marital regime.
They will also be required to publish their notice to change in the Government Gazette and two local newspapers at least two weeks prior to the date on which their application will be heard. Creditors will also have to be given notice, by registered post, that the couple intends to change their matrimonial property regime;
· the couple will also have to attach a draft of the notarial contract which they wish to register to the court application;
· the application will have to state that no other persons will be prejudiced by the proposed change and that the rights of creditors will be preserved in the proposed contract; and
· the application must contain sufficient information regarding the couple’s assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether any particular person will be prejudiced by the proposed change.
The application can be long and expensive and it is advised that couples obtain legal advice before the solemnisation of their marriage.
Can couples change their marital property regime without going to court?
In AM v HM  ZACC 9, the courts had to briefly consider the question of whether parties could change their marital property regime without following the processes set out in section 21 of the MPA.
The facts of the case were that Mrs AM (“Applicant”) and Mr HM (“Respondent”) had been married out of community of with the exclusion of accrual in 1993. The antenuptial contract was duly registered in terms of the MPA. During the course of 2014, the Applicant drafted a document that purported to be a postnuptial agreement. In terms of this agreement, the Applicant would be entitled to half of the Respondent’s estate and that the Respondent would pay for her maintenance. The Applicant had on numerous occasions asked the Respondent to sign the document, however the Respondent refused to do so. The Respondent finally signed the document on the evening of 10 November 2014 after an argument between the Applicant and the Respondent had allegedly escalated into aggression.
At the end of November, it came to the Applicant’s attention that the Respondent was engaged in an extramarital affair and that the Respondent had approached an attorney for the purposes of instituting divorce proceedings. In court, Mrs AM contended that the agreement concluded between herself and the Respondent was valid and that it constituted an amendment to their antenuptial agreement or that it was an agreement concluded in contemplation of divorce as contemplated in section 7(1) of the Divorce Act, 70 of 1979 (“Divorce Act”). The Supreme Court of Appeal (“SCA”) accepted that the parties had concluded a valid agreement, however, the SCA held that since the parties had not approached a court in terms of section 21(1) of the MPA to sanction a change of the antenuptial contract, the central issue that had to be determined was whether the agreement was made in contemplation of a divorce. The SCA held that the agreement was not made in contemplation of a divorce because divorce had not been discussed by the parties when the document had been signed. The Applicant’s appeal was dismissed.
Leave to appeal to the Constitutional Court was granted to the Applicant. In the Constitutional Court the Applicant submitted that the SCA’s interpretation of section 21(1) of the MPA militates against married couples’ contractual freedom and allegedly infringes upon their constitutional rights to freedom, dignity and non-discrimination. The Constitutional Court found that the Applicant’s attack on the judgment of the SCA was misplaced in that a proper interpretation and analysis of the judgment reveals that the SCA did not prescribe a bar on all agreements between spouses married out of community of property. The finding by the SCA only related to the Applicant’s and the Respondent’s agreement, whose terms appeared to have the effect of changing the parties’ matrimonial regime without being sanctioned by a court order. It did not affect the parties’ capacity to contract in respect of other agreements. Based on this and other reasons, the appeal was dismissed.
The above highlights the fact that proper process needs to be followed by parties should they want to change their marital property regime. Married couples who would like to change their marital property regime should follow due process and apply to a court to change their marital property regime. Spence Attorneys can assist with preparing antenuptial agreements, as well as postnuptial agreements through an application to High Court.
Copyright, Spence Attorneys (C). This article is for information purposes only and should not be regarded as legal advice. Always seek your own legal advice, and this article is not intended as a substitute therefore.