Section 21 Application – What is it?
Upon getting married, each couple has the choice of how to get married, be it in or out of community of property with or without the accrual.
Sometimes however parties to a marriage are not in a proper position at the time or properly informed about the pros and cons of each type of property system and upon later research, realise that the system which they chose, may not be the system which is best for them.
In such a case, a Section 21 Application is the way to have this amended.
Where and How
In terms of Section 21 of the Matrimonial Property Act, 88 of 1984, spouses which intend to amend their matrimonial property system may apply to a court to vary the terms of their existing Ante-Nuptial Contract, or alternatively change their matrimonial property system outright.
In order to do so, parties should consult with their attorney who will be able to assist them with such an application as there are certain procedures which have to be complied with for such an application to succeed.
In terms of a Section 21 Application, certain procedures need to take place, such as creditors needing to be notified and given an opportunity to respond to the application if they so wish. Furthermore, the details of the intention to amend need to be published in the Government Gazette and the Deeds office will also have to do a report on the application, to mention a few.
What is important to note is that strong reliance is placed on the prejudice such an application may have on existing creditors and it is not uncommon for amendments to be made such that they do not affect existing creditors. It would be best to discuss the ins and outs of your creditors with your attorney as they will be in the best position to advise on the best way to have your matrimonial property system amended
If you are thinking about amending your matrimonial property system or are uncertain about the differences between different matrimonial property systems, feel free to contact us so we may assist you with the details of either entering such an application or just for advice on the differences between different matrimonial property systems.