Variations of Matrimonal Regime

How do I change my matrimonial property regime after marraige?

You and your spouse will need to bring a High Court application in terms of section 21(1) of the Matrimonial Property Act for you to be permitted to enter into a notarial contract setting out what the future matrimonial property regime shall be for your marriage.

Requirements in terms of legislation:

  1. An application to the High Court must be brought jointly by both spouses.
  2. There must be sound reasons given in the application for the proposed change to satisfy the Court that no other person will be prejudiced by the said change and that the rights of creditors will be preserved.
  3. A draft notarial contract (which the spouses intend to enter into and register to regulate their matrimonial property regime if the application is successful) must be annexed to the application.
  4. Notice of the application must be given to the Registrar of Deeds (required by section 97(1) of Deeds Registries Act).
  5. Notice of intention to bring the application must be published in Government Gazette, and in 2 local newspapers not less than 2 weeks before the date the application is to be heard, stating what steps any objector can take and where the application and draft notarial contract may be inspected.
  6. Notice must be given to all actual or contingent creditors for both parties by registered post not less than 2 weeks before the date the application is to be heard, with a list of those creditors included in the application, and a further affidavit attaching proof of the notice given.

Further requirements based on case law:

  1. The application should state whether or not either or both parties have ever been sequestrated and the circumstances of any such sequestration, and provide the case number of any rehabilitation application(s).
  2. The application should state whether or not there are any legal proceedings pending against either or both parties by any creditor seeking payment of any alleged debt which is due by either or both party.
  3. The draft notarial contract annexed to the application should contain a clause or provision for the preservation of the rights of the pre-existing creditors.
  4. The application must disclose where the parties are domiciled and, if not resident there when the application is made, where they are resident. Any recent change in domicile or residence should be disclosed.

What should I prepare or bring with me for my attorney?

  1. Original identity documents and/or copies of your identity documents.
  2. Schedule of the assets and liabilities owned by each of you individually or jointly, as the case may be.
  3. Latest documentary proof of the value of those assets and the outstanding amounts of those liabilities.
  4. Schedule of the contact details for the creditors for each of you individually or jointly, as the case may be.
  5. Proof of any credit agreements entered into and the details of how, and on whose behalf, the particular liability was incurred.
  6. Documentary proof and details in respect of any sequestration of either or both of you, and of any rehabilitation applications in connection with this.
  7. Documentary proof and details of any current pending legal proceedings against either or both of you by a creditor demanding payment of an alleged debt due.

For direct answers to your specific personal questions, please contact us directly.

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