Change of Matrimonial Property System / Post Nuptial Contracts
Section 21(1) of the Matrimonial Property Act 88 of 1984 provides as follows:
(1) A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage, and the court may, if satisfied that—
(a) there are sound reasons for the proposed change, for example, the husband and wife were not aware of the fact that they were deemed to be automatically married in community of property when they got married;
(b) sufficient notice of the proposed change has been given to all the creditors of the spouses via registered post. The parties’ intention to change their marital property regime shall be given to the Registrar of Deeds and shall also be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard;
(c) no other person will be prejudiced by the proposed change, for example, creditors’ rights to recover against the parties in terms of existing agreements must be addressed in the application. Hence, the application must give sufficient insight into the parties’ financial circumstances as at the time the application is made.