Why would I want to?
When getting married, you and your new spouse have the opportunity to consider your matrimonial property system. Community of property is a whole article on its own however and to appreciate the contents of this post, you will require some basic knowledge of matrimonial property systems in South Africa.
In short there are a few options when getting married; in community of property or out of community of property whereby spouses will have to register an ante-nuptial contract and specify whether they would like to include or exclude the accrual system, the ante-nuptial contract may also contain any provision provided that it is not contrary to the law, good morals or the nature of marriage.
If spouses do not expressly specify and actively register an ante-nuptial contract, they will be married in community of property by default. Many couples realise at a later stage that their matrimonial property system is not one which they intended to marry under or some or other administrative defect results in their marriage never being registered under the correct matrimonial property system or for any other number of possible reasons spouses may fail to have their marriage registered correctly or as intended.
In such an event, the law provides an avenue which spouses may pursue to have their matrimonial property system changed; there are however some requirements in this regard which will be discussed.
Requirements:
To change a matrimonial property system, spouses will have to approach the High Court with such an application. It is however important to take note that the granting of such an order is solely at the discretion of the High Court and it needs to be shown that should spouses have any existing creditors, these creditors will not be prejudiced by your application nor will any one else be prejudiced by such an application.
In approaching a court for such an application, the onus is on the parties bringing the application to show that they have good cause for bringing such an application. Furthermore, when bringing such an application, all creditors will have to be given sufficient notice and be given the opportunity should they wish to oppose such an application.
Sources:
Matrimonial Property Act, Act 88 of 1984.
