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It’s possible to change your marriage regime

By Athenkosi Sawutana

Many people wed before they sign an antenuptial contract (ANC). This is especially practiced by people in customary marriages and those not clued up about the ANC. The law says if there’s no ANC before the wedding takes place, the marriage will automatically be in Community of Property. 

For some reason you may find this regime isn’t working out for you. The question is: can you change it?

Tip: Before you tie the knot, ensure your credit rating is good. Get your credit report here.

According to Section 21 of the Matrimonial Act 88 of 1984, you and your spouse can jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to the marriage.

To change your marriage regime, your application must meet the following requirements:

  • there must be sound reasons for the proposed change
  • sufficient notice of the proposed change should be given to all the creditors of the spouses
  • no other person must be prejudiced by the proposed change

“Changing your marriage regime is a somewhat time-consuming procedure where you have to make an application to the High Court for a change in your matrimonial property regime,” says Bridget Ellender, attorney at Dunster Attorneys.

You must also notify all your creditors and the deeds office as well as advertise in the Government Gazette and newspapers, she adds.

The notifications both to the deeds office and to your creditors must happen at least two weeks before your application is heard.

READ MORE: Financial tips for couples before marriage.

This process can take up to three months because of the notice periods required for the court application.

According to Ellender, the process is not only time consuming, it’s also expensive. She says changing the postnuptial contact could cost you about R20,000. These costs include but aren’t limited to:

  • Consultation fees
  • Advertisement fees
  • Advocate’s fee for application at court   
  • Deeds office fees
  • Delivery of court documents fees
  • Postage fees
  • Drafting of the antenuptial contract

Key things to note when you change your marriage contract:

If you and your spouse are registered owners of immovable property, the title deeds must be endorsed in terms of section 45bis. Transfer fees will apply where necessary.

The application will succeed if neither of you is insolvent nor has any judgments or legal action pending against you. If this isn’t the case, then there’s a chance that creditors may object to the application.

To avoid the costs that are involved in changing your marriage contract, ensure that you speak to a qualified legal practitioner before you get married.

 

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