If a valid customary marriage has been concluded without an Antenuptial Contract excluding community of property, the matrimonial property consequences will be In Community of Property. However, South African law provides a strict mechanism to change this retrospectively.
The Section 21 High Court Application
Changing your matrimonial property regime after the marriage has legally commenced is not as simple as visiting a Notary Public to sign a late document. Because your estates joined into a one joint estate, changing your regime does not only affect you and your spouse, but your creditors too, if any.
To change your regime to Out of Community of Property, you must apply to the High Court under Section 21(1) of the Matrimonial Property Act.
The Requirements for Court Approval
The High Court does not grant these applications automatically. You and your spouse must prove three specific things to the judge:
- Sound Reasons: You must provide a valid, rational explanation for why the change is necessary now, and why the contract was not executed prior to the marriage.
- Notice to Creditors: You must prove that sufficient notice of the proposed change has been given to all of your current creditors.
- No Prejudice: You must satisfy the court that no other person (such as a bank, business partner, or creditor) will be financially prejudiced by separating your joint estate.
The Reality: Timing and Costs
A Section 21 application is a rigorous litigation process. It requires drafting complex legal affidavits, publishing formal notices in local newspapers and the Government Gazette, and sending registered letters to all known creditors.
Because it is a High Court procedure, the costs can be substantially higher than arranging an Antenuptial Contract before the marriage. Furthermore, the existing matrimonial property regime remains in place until the court grants the necessary order and the required steps are completed.
Creditor Objections
Both spouses must fully consent to the change. Even with mutual consent, if you or your spouse hold significant debt, a creditor has the right to formally object to your application. They may argue that shifting to Out of Community of Property prevents them from attaching the other spouse's assets to recover the debt.
Do you need to restructure an existing marriage?
It is critical to consult with specialized matrimonial attorneys immediately to assess if a High Court application is viable for your estate.
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