Legal Articles

The conclusion of a marriage has far reaching consequences for the parties entering into such marriage, and it is especially important that they seek legal assistance so as to make decisions that are not to their detriment.

The issues of individual assets and liabilities form the bedrock of what parties entering into the marriage ought to discuss and agree on their preferences.

Matrimonial Property Act South Africa

The Matrimonial Property Act 88 of 1984 provides for the matrimonial property systems under the South African legal framework.

According to this Act the systems recognised in South Africa are:

• Marriage in Community of Property whereby parties own assets and liabilities between them in joint, undivided and equal shares;
• Marriage out of Community of Property and community of profit and loss without the accrual system which is where the spouses are in total separation of their assets and liabilities;
• Marriage out of Community of Property whereby community of profit and loss is retained and the parties retain assets and liabilities accrued prior the marriage, and those which do not fall into the joint estate during the marriage, but share gains and losses during the subsistence of the marriage as part of the joint estate.

The Act introduced the Accrual system as well where spouses in a marriage relationship only share the profit increases in their separate individual estates during the subsistence of the marriage.

Is Changing a Marriage Contract Possible in South Africa?

Before the commencement of the Act, the immutability principle applied which meant that once a marriage is concluded, the applicable matrimonial property system may not be changed, as was noted in Honey v Honey 1992 (3) SA 609 (W).

However, the legislature noted that this situation was untenable as changed circumstances may require that spouses change their matrimonial property system.

This is now possible under section 21(1) of the Matrimonial Property Act, whereby the parties may bring an application before the Court to change the matrimonial property regime that applies to their marriage. The following applies;

• There must be sound reasons for the change;
• Sufficient notice must be given to the creditors of both spouses;
• No other party will be prejudiced by such change.

In Ex Parte Engelbrecht 1986 (2) SA 158 (NC) 160H the Court held that ‘sound reasons’ refer to the ordinary grammatical meaning of the words and must be convincing, valid and based on reality.

This effectively means sound reasons in any case must be decided upon circumstances of each case so there cannot be a blanket approach to what these are.

In bringing the application, the guidelines set out in the case of Lourens et Uxor 1986(2) SA 291 (C) are important. Alike guidelines were also adopted in other divisions of the High Court in pursuit of uniformity (e.g Ex Parte Le Roux; Ex Parte Von Berg 1990 (2) SA 70 (O), Ex Parte Madikiza 1995 4 SA 433 (Tk).

Can an Antenuptial Contract be Changed?

These guidelines are essentially the procedural requirements in bringing an application provided for under Section 21 (1) of the Matrimonial Property Act:

• Notice to the Registrar as per Section 97 of the Deeds Registries Act 47 of 1937;
• Notice of the proposed change must be published in the Government Gazette, an English and an Afrikaans newspaper 2 weeks before the hearing of the application;
• Such published notice must stipulate when and where the application may be inspected by interested parties and how one can oppose should they opt to do so;
• An annexure of the draft Notarial agreement must be affixed to the application;
• Sufficient proof that creditors have been notified and a list of such creditors must be provided;
• There must be a sufficient outline of the assets and liabilities of both parties in the application for the Court to assess against the backdrop of the reasons given for the proposed change;
• An indication must be given whether or not the parties have been sequestrated before and under what circumstances, including the details of the case for the rehabilitation;
• The application must motivate why no other parties will suffer any prejudice due to the proposed change;
• It must be stated if there is any pending legal action against either of the parties for the recovery of any of their creditor’s claims;
• The application must state where the parties are domiciled and in case of any change of domicile, such must be disclosed

Van Deventer & Van Deventer Incorporated – Marriage Attorneys South Africa

Changing the matrimonial property system prevailing in a marriage is possible under the Act and we stand ready to assist spouses in achieving such change. Contact us.

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