Did you get married to your partner without an anti-nuptial contract? In South African law, this means that you are automatically married in a community of property.
What this means is that everything in your estate and your spouse’s estate is automatically combined. What can you do now? Can you still change your marital regime?
Antenuptial contracts are by default enforceable in South African law if they are not properly executed before marriage.
Many couples only learn about the implications of being married in community of property after they are married because they did not seek the proper legal advice prior to marriage.
In spite of the fact that you cannot execute an antenuptial contract after marriage, there is good news.
You can change your marital property regime from in community of property to out of community of property.
So, the answer is yes – you can change your marital regime.
The way to do it is to apply to your nearest High court and make an application to have your matrimonial system changed.
Required Documents
The following documents will be needed before you can begin the process of changing your martial regime:
- Copies of identity documents or passports for both the parties;
- Copy of marriage certificate;
- Reasons for not registering an antenuptial contract prior to your marriage;
- Your reasons for executing a postnuptial agreement now;
- Copies of proof of address for both the parties;
- Income tax numbers for both parties (if applicable);
- Occupations/job descriptions for both parties;
- The full names and date of birth of your children (if applicable);
- Details of all assets you both own (including movables, immovables, investments, and cash); and
- Details of all existing creditors (together with supporting documentation such as most recent statements, etc.)
The judge in the High Court will be looking for: the creditors and you need to think about your home loans, your car instalments, bank cards, overdraft, creditors, any kind of creditors they have been properly notified in advance of your intention to change your marriage system and none of them has any objections to that.
The second thing is there must be no prejudice. In other words, you can’t have one spouse who has racked up a whole bunch of debt and now all of a sudden he wants to change his marriage system. The court’s not going to accept that.
If you are married without an anti-nuptial contract, you are automatically married in community of property but it’s not too late, you can still change your marriage system to out of community.
Clearly, it is possible to change your matrimonial property regime once you have entered into a marriage. It is important to note, however, that a change in the marriage regime can be costly as it affects an individual’s status, which cannot be changed without an order from the High Court.
In view of this, it is a good idea to speak to an attorney before you marry so that you are fully aware of the various marital regimes, their consequences, and can timely execute and register a valid antenuptial agreement.
