A Matrimonial Property Act application under section 21(1) must be submitted by you and your spouse for you to be permitted to enter into a notarial agreement setting out the future matrimonial property regime for your marriage.
Requirements in terms of legislation:
Joint applications to the High Court must be filed by both spouses.
To satisfy the Court that no other person will be prejudiced by the proposed change and that creditors’ rights are preserved, there must be sound reasons given in the application for the proposed change.
To be considered for a divorce, a draft notarial contract (which the spouses intend to enter into and register to regulate their matrimonial property regime) must be attached to the application.
Notice of the application must be given to the Registrar of Deeds (required by section 97(1) of Deeds Registries Act).
A copy of the notice of intention to bring the application must be published in the Government Gazette, as well as two local newspapers, at least two weeks before the hearing date, stating what steps may be taken by any objector, and where the application and draft notarial contract may be inspected.
All actual and contingent creditors of both parties must be notified by registered post at least 2 weeks before the hearing date, together with a list of those creditors included in the application, and an affidavit confirming that the written notice was given.
Case law: Further Requirements
Applicants are required to state whether either party or both parties, has ever been sequestrated, as well as the circumstances of that sequestration, in addition to the case number of any rehabilitation applications.
In the application, the applicant should indicate whether there are pending legal proceedings by any creditor seeking to collect an alleged debt due by either party or both.
There should be a clause in the draft notarial contract attached to the application for the preservation of the rights of the pre-existing creditors.
Where the parties are domiciled must be disclosed in the application, as well as where they are residing if they are not resident in the area when the application is made. Those parties who have recently moved should disclose their new address.
When I meet with my attorney, what should I prepare?
- Original identity documents and/or certified copies of your identity documents.
- The list of assets and liabilities that you each own individually or jointly.
- Documents verifying the value of assets and the outstanding amounts of liabilities.
- A list of each of your creditors and their contact information, individually or collectively, as the case may be.
- Evidence of credit agreements and how the liability was incurred, as well as on whose behalf.
- Evidence and details concerning any sequestration of you or both, and any rehabilitation applications you make in connection with it.
- Proof of any court proceedings currently pending against either or both of you by a creditor demanding payment of an alleged debt.
