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In terms of South African law, if you do not properly execute an antenuptial contract prior to marriage you are automatically deemed to be married in community of property.
For various reasons, more and more couples are realising the implications of being married in community of property, and due to not seeking legal advice prior to marriage, many couples only become aware of the consequences after they are married.
Although you cannot execute an ‘antenuptial’ contract after your marriage, the good news is that it is possible to change your matrimonial property regime from “in” to “out” of community of property by registration of a Postnuptial Contract in terms of Section 21(1) of the Matrimonial Property Act. The effects of the notarial contract is very similar, but the procedure is different as you will first require the permission of the High Court.
Before considering this option, the following questions need to be considered:
Will your spouse object to the application or refuse to sign a confirmatory affidavit in support of the application?
Are you or your spouse insolvent or has sequestration proceedings been brought against either of you?
Do you or your spouse have any judgments against you?
Do you or your spouse have any legal action pending against you by a creditor?
If your answers to all of the above questions are “NO”, then there is no reason for your application to be opposed, in which case we have a 100% success rate.
The procedure involves a joint application to the High Court by both parties, to ask the Court to grant the parties leave to sign a Notarial Contract (having the effect of a postnuptial contract), which after registration will regulate their matrimonial property system.
In order for the parties to change their matrimonial property system, the Act provides the following requirements:
sound reasons for the proposed change;
sufficient notice of the proposed change to all creditors and the Registrar of Deeds; and
the court must be satisfied that no other person will be prejudiced by the change.
Once the order is granted by the court, the postnuptial contract is executed and thereafter registered in the Deeds Office.
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