What is the process to follow if you want to change a marriage contract from in-community-of-property to an antenuptial?
If you are currently married in community of property, you are no doubt aware that you and your spouse did not sign an antenuptial contract before getting married. As such, you and your spouse share a joint estate with no division of assets.
In order to change your matrimonial property regime from ‘in community’ to ‘out of community’, you and your spouse will need to apply to the high court for leave to sign a notarial contract which, after registration at the Deeds Office, will have the effect of an antenuptial contract which will regulate your new matrimonial property regime.
In order to undertake this process, which is governed by Section 21(1) of the Matrimonial Property Act, you will need to ensure that both you and your spouse are in agreement to make the application.
One spouse cannot make the application without the other spouse’s consent and participation.
When making your application to the high court, you and your spouse must set out the reasons for making the proposed change. In addition, you will need to ensure that neither of you is insolvent or has any judgments or legal action against you. Further, the court must be satisfied that no other person will be prejudiced by the change.
Part of the process includes publishing a notice to creditors in two local newspapers and the Government Gazette, and these notices must be published at least 14 days before your application is set to be heard. You will also be required to send notices to your creditors via registered mail of your intention to change marital regimes. Because of this requirement, the process can take up to three months to complete.
In preparing for the high court application, you and your spouse will need to prepare certified copies of your ID documents, marriage certificate, proof of address and income tax numbers. You will also need to provide information pertaining to your minor children, assets and liabilities, employment, as well as a full list of all existing creditors.
As this process requires an application to the high court, be aware that it can cost around R15 000 in legal fees.
This is a costly process and we advise that you consult with an attorney who has experience in this field. Further, it is important that both you and your spouse fully understand what it means to be married out of community of property and how it will affect your finances going forward, especially if your marriage was to dissolve due to death or divorce.
You will also need to ensure that your wills are updated and that you review your respective estate plans.