Family Law: Is it possible to change your matrimonial property system?

Types of Marriages and Matrimonial Property Systems

In South Africa, there are three legally recognised marriages, namely, civil marriages, customary marriages, and civil unions. These types of marriages are governed by one of three different matrimonial property systems as detailed in chapter 1 of the Matrimonial Property Act 88 of 1984, which are marriages in community of property, marriages out of community of property with the application of the accrual system, and marriages out of community of property without the application of the accrual system.

If the spouses enter into an antenuptial contract before they are married, their marriage will be out of community of property. It is important to note that if an antenuptial contract is not executed and timeously registered at the Deeds Office, the default matrimonial property system will be a marriage in community of property. A marriage in community of property will mean that the spouses’ separate estates become one joint estate and both spouses will share equally in the assets and liabilities acquired by them during their marriage.

However, one does not always have to remain bound by their said matrimonial property system and there are ways for spouses to change their marital property regime and still remain married.

Changing of Matrimonial Property System from In Community of Property to Out of Community of Property 

Section 21(1) of Matrimonial Property Act 88 of 1984, provides for spouses to jointly apply to a court for leave to change their matrimonial property system. The court must be satisfied that there are sound reasons for the proposed change; that there has been sufficient notice of this proposed change provided to all creditors and other interested parties; and no other person will be prejudiced by the proposed change. It is imperative to note that the onus is on the spouses to prove that they have good cause to change their marital property regime and it will be in the court’s discretion whether to grant the order. Should the court be satisfied that the abovementioned requirements have been met, it shall grant an order that such matrimonial property system shall no longer apply to the spouses’ marriage and further authorise the spouses to enter into a notarial contract by which their future matrimonial property is regulated.

Customary Marriages as governed by Recognition of Customary Marriages Act 120 of 1998

The Recognition of Customary Marriages Act 120 of 1998 (“RCMA”), came into force on 15 November 2000 and has placed monogamous customary marriages on an equal footing to that of civil marriages.  As with civil marriages, customary marriages’ default matrimonial property system is that of ‘in community of property’, unless it is specifically excluded by the spouses by way of an antenuptial contract which regulates the matrimonial property system of their marriage.

Change of the matrimonial property regime of a customary marriage,

Changing from the default matrimonial property system of ‘in community of property’ to ‘out of community of property’ in a monogamous customary marriage which was entered into after RCMA is also governed by section 21 of the Matrimonial Property Act, as was discussed above.

Section 7(4)(a) of the RCMA provides that spouses in a customary marriage entered into before the commencement of the Act may jointly apply to court to change their matrimonial property system which applies to their marriage or marriages. Predominantly the same requirements as were stipulated in Section 21 of the Matrimonial Property Act would need to be met in order for the Court to grant the order. If the court finds in the spouses’ favour, it will order that the matrimonial property system applicable to such marriage or marriages will no longer apply and authorise the spouses to enter into a written contract in terms of which the future matrimonial property system of their marriage(s) will be regulated on conditions determined by the court. Section 7(4)(b) of the RCMA provides that all persons having a sufficient interest in the matter and the existing spouses must be jointed to the proceedings.

Should a husband in a customary marriage wish to enter into a further customary marriage it would mean that the matrimonial property system applicable to his current marriage would have to be terminated and the court would affect a division of the said matrimonial property and a written contract would be entered into to regulate the future matrimonial property system of his marriages.

Written by Nomakhaya Mani

For any assistance or guidance please contact Nomakhaya Mani at nmani@dkvg.co.za or Stephen Duffett at sduffett@dkvg.co.za.

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.

Share
Share