In South African law, if you do not properly execute a marriage (ante-nuptial) contract prior to marriage you are by default married in community of property. More and more couples are realizing the implications of being married in community of property, and by not seeking correct legal advice prior to the marriage, many couples only become aware of the consequences after they are married. In addition thereto, parties who have concluded marriage contracts with or without provision of accrual seek advice on how to change their marriage contracts.
Section 21(1) of the Matrimonial Property Act 88 of 1984 provides that the parties may apply jointly to court for leave to change the matrimonial property system which applies to their marriage. The parties cannot, without a court order, conclude a valid marriage contract after their marriage.
The decision in Lourens et Uxor 1986(2) SA 291 (C) sets out guidelines that the courts
should follow with regard to applications in terms of section 21(1) of the Matrimonial Property Act for the change of their matrimonial regime and to register a marriage contract after the date of marriage (post-nuptial).
These requirements are generally as follows:
1. the parties must provide sound reasons for the proposed change;
2. sufficient notice of the proposed change must be given to all creditors as well as
the Registrar of Deeds. This is generally in the form of advertisements in the
Government Gazette and local newspaper; and
3. the court must be satisfied that no other person will be prejudiced by the change
in the matrimonial property system.
Is it possible for the parties to change their marriage contract during their marriage?
In this section, we discuss a situation where the parties have concluded a marriage contract but during their marriage, they wish to change its terms. These parties are also not permitted to amend their marriage contract during their marriage without a court order. Any such change must be authorized by the court in order for the change to be valid and binding. The exception to this legal principle is the parties who conclude a contract during their marriage but in contemplation of a divorce. Whether a contract is concluded in contemplation of a divorce or not is a matter of fact. This principle was recently confirmed by the Constitutional Court in the matter of AM v HM, Case number CCT95/2019.
This article is written simply for the purposes of making the readers aware of certain
provisions of the above case law and does not in any way serve as an advice to any reader and in the event that any person requires advice on the above, you may contact us or consult your attorney.
Written by Kim Slaffa, candidate legal practitioner in the firm.
