Can I Change my Marital Regime?

In South African Law you can either get married in community of property or out of community of property. By default, all marriages are in community of property unless you specifically choose to make your marriage one out of community of property by entering into an antenuptial agreement prior to getting married.

If you did not know this and wish to change your marital regime after marriage, fear not, it is possible to do this.

Section 21(1) of the Matrimonial Property Act allows a married couple to approach a court for an order that would allow them to change their matrimonial property system. If they want to do so, they will have to convince the court that there are sound reasons to do so. They will also have to give sufficient notice to their creditors of their intentions and convince the court that no other party will be prejudiced if their matrimonial property system is changed.

A Section 21(1) application is also allowed for parties who got married in terms of customary law. Section 7(4) & 7(5) of the Recognition of Customary Marriages Act allows for such an application in non-polygamous customary marriages.

A court upon granting an order allowing such a change to your matrimonial property system will set requirements as to the period within which a postnuptial agreement should be executed and registered after the date of the order. The court may also require specific provisions to be contained in such a postnuptial agreement, for instance dealing with the ownership of existing joint assets and liabilities.

It normally takes between 4 to 6 months to attend to such an application and the subsequent registration of a postnuptial contract. The cost of the court application and the subsequent execution and registration of the contract is normally about R 25 000,00.