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How to Change your Matrimonial Property Regime

ByOur Lawyer

How to Change your Matrimonial Property Regime

Changing your matrimonial property regime

What is your matrimonial property regime?

advice-child-maintenance-child-custody-divorceAre you married in Community of Property ? Do you want to change your matrimonial property regime to Out of Community of Property? Did you not know that a marriage Out of Community of Property was possible when getting married? There is relief for you and your spouse.

We are conveniently located in the Pinnacle Building, in the Cape Town CBD. Click here to call us on (021) 4243487 or send us an email.

All civil marriages are automatically In Community of Property.  This means that there is one estate shared between wife and husband. Therefore, if any one of the spouses incurs a debt, that debt belongs to both of them.

The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people, this would be a better option, especially if you are a business person.

The usual process to be married Out of Community of Property is to enter into an ante nuptial contract before the marriage. The contract will have clauses in it stating:

  • That there shall be no community of property;
  • That there shall be no community of profit or loss; and
  • That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage.

However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court in your Jurisdiction. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984.

Getting the High Court’s Consent

Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you. This the attorney may attend to with or without the assistance of an Advocate.

What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided. Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that:

  • There are sound reasons for the proposed change of the matrimonial property regime;
  • There has been sufficient notice to creditors regarding the proposed change; and
  • No other person will be prejudiced by the proposed change.

If, however you cannot make a case for the above, your application may be unsuccessful.

Costs involved in changing your matrimonial property regime

As stated, you have to approach the High Court for consent to change your matrimonial property regime. There therefore would be costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the post nuptial contract. Furthermore, there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs can range from R 15 000 – 00 should your matter be straight forward, to R 20 000 – 00 should it be more complicated.

Complicated would mean the joint estate has many creditors. Furthermore, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above-mentioned fee is obviously dependent on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor, and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made.

Time estimates

The estimated time in preparing your application, your post nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is sitting within 4 weeks after the drafting of your application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays.

Once your application is successful and the High Court therefore gave consent, you will usually have 3 (three) months to register the post nuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post nuptial contract and then have it registered. This therefore needs to be done within the three months of obtaining the consent of the High Court.

advice-child-maintenance-child-custody-divorceSharing is Caring

This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share.

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12 comments so far

EricPosted on11:00 am - Sep 17, 2018

I was forced by parent of my wife while i was 22 yrs. Her father after hearing that i was in love with his daughter he took us to court with my uneducated parents as witness to enter into Community of property. i dint have anything bu that time as i was still at school. Now i have assets accumulated alone as she never had official work. i have lots of debts which i am able to service without a problem. i want to change to out of community of property to protect her from liabilities in case i die. i do have a will.

    Our LawyerPosted on11:42 am - Sep 17, 2018

    Good day
    You would need to make an application to court as per the article. If you require advice on this issue, feel free to contact us to set up a consultation.

SimonPosted on2:36 pm - Oct 23, 2018

We are married in community of property, I did not realise that my wife has lot of debts, most of them I have paid & still willing to continue paying until we can clear her name at credit buro.

The big problem is that we want to buy a house at this stage, I qualify for a bank loan, but because of my wife has got judgedments I have been declined a lone.
Is it possible to cancell married in community, apply for a loan & re instate again after receiving a loan?, If it is possible how long is the process?, we have seen the property & we dont want to loose it.

    Our LawyerPosted on9:05 am - Oct 24, 2018

    Good day
    Yes, it is possible. However, creditors can still proceed against you both for debts prior to the change. The process takes about two months.

Val burrellPosted on11:42 pm - Nov 7, 2018

I married anc in 1992. My anc contract omitted an entire house worth 150 000.00 and a car worth 25 000.00. These assets were purcased two years prior to marriage and title deeds reflect the asset in my maiden name..is this a major change?..there is no community of property here just a straight anc document with furniture only..and a house to be added and a car

VeronicaPosted on10:38 pm - Jan 15, 2019

I got married in 2008,my husband found me owning a house already.The house is still under my maiden name,now i want to know if tis possible to change from In community of property to out of community without him knowing ?
He is a divorcee,he never contested for his house but it sounds like he wants to own my house.

MandyPosted on1:26 am - Feb 16, 2019

I’m married ANC with accrual. Would it be possible to change to ANC without accrual? What would the process and requirements be in this case?

    Our LawyerPosted on6:38 pm - Feb 16, 2019

    Good day
    Both and your spouse should agree to it. If this is the case, then there should be no issues. We strongly advise that you speak to an attorney who would be able to give you the correct advise after hearing all the facts.

MJPosted on10:48 am - May 7, 2019

Good day. I’m married in cop but want to change it to anc but i reside in Kempton park area (Gauteng). Do you have a branch this side that i can go to for face to face consultation with my wife?

    Our LawyerPosted on3:42 am - May 8, 2019

    Good day
    The attorney that deals with this is based in Cape Town, however it can be all done telephonically, via email and post if you wish to make use of the service. If you are interested, a telephonic, or video consultation should first be arranged. Feel free to make use of http://www.ourlawyer.co.za/advice .

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