A marital regime determines how parties’ assets will be managed and divided during their marriage and in the event of divorce or death. Changing the marital regime can provide parties with greater financial flexibility and protection.
Understanding marital regimes
In South Africa, there are three main marital regimes:
In community of property: This is the default regime where both spouses share equal ownership of all assets and liabilities acquired before and during the marriage.
Out of community of property with the inclusion of the accrual: Under this regime, each spouse maintains separate estates during the marriage, but the growth of their respective estates is calculated and shared equally upon the dissolution of the marriage.
Out of community of property without accrual: In this regime, each partner’s assets and liabilities remain separate throughout the marriage, and there is no sharing of accruals upon divorce or death.
In terms of section 21 of the Matrimonial Property Act, the marital regime can be changed by mutual consent and by way of an application by the parties to the High Court. Such an application requires compliance with specific procedures to ensure its validity. Both parties need to understand the implications and consequences of changing the marital regime and proper reason must be given for the change of the marital regime. It is important that there is full and proper disclosure when seeking to change a marital regime. The failure to provide full and accurate information may result in the order not being granted by the Court. The parties’ legal representatives will draft a postnuptial contract to reflect the newly chosen martial regime. This contract will specify the new regime the parties wish to adopt, such as transitioning from “in community of property” to “out of community of property with accrual”.
The notarial contract must be attested by a notary public. The notary public will verify the identities of the parties and ensure they fully understand the terms and consequences of the proposed changes.
The High Court will review the proposed changes and assess whether they are fair and reasonable. The court’s primary concern is to protect the rights of both parties and any potential creditors. It is important that the interests of the creditors, who might be affected by the change, are protected and therefore the court will give proper consideration before granting such an order. After the High Court’s approval and a court order is granted, the amended marital regime must be published in the Government Gazette and two local newspapers to inform creditors and any other interested parties of the change. Once the public notice has been completed, the amended marital regime is registered at the Deeds Office. Registration will finalise the changes and ensure their enforceability against third parties.
It is crucial for the parties to carefully consider the implications of changing their marital regime. Each regime has its advantages and disadvantages, and seeking professional legal advice can help parties make an informed decision that aligns with their financial goals and preferences.
Changing the marital regime is a legal process that requires careful consideration and adherence to specific procedures. It provides parties with an opportunity to adjust their financial arrangements to better suit their needs and protect their interests. By following the necessary steps, parties can navigate the process smoothly and ensure their new marital regime aligns with their future plans and financial security.
WRITTEN BY MARITZA DU PREEZ
- Maritza du Preez is an Associate at Miller Bosman Le Roux Attorneys.
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.