If you did not execute an antenuptial contract prior to marriage, you will deemed to be married In Community of Property. The consequence would be similar if you signed a contract but it was not registered within three (3) months from the date of execution.
It is possible to change your matrimonial property regime from “in” to “out” of community of property by registration of a Postnuptial Contract in terms of Section 21(1) of the Matrimonial Property Act. Similarly, if your contract was not registered timeously you may apply to court for permission for late registration of your contract in terms of Section 88 of the Deeds Registries Act.
In order to change your matrimonial property system, the Act provides the following requirements:
- Sound reasons for the proposed change.
- Sufficient notice of the proposed change must be given to all creditors and the Registrar of Deeds
- The court must be satisfied that no other person will be prejudiced by the change.
The procedure involves a joint application to the High Court by both spouses, requesting the Court to grant leave to sign and/or register the contract. It is imperative that both spouses are in agreement to make the application.
A Notice to Creditors will need to be published in two newspapers and we will also need to send notices to your creditors by registered mail. The time period is approximately 2 to 3 months, due to the time frames and notice periods required for the court application.
If neither spouse is insolvent and neither spouse has any judgments or pending legal action against them, then the application will succeed. If this is not the case, then there is chance that creditors may object to the application.
We currently have a 100% success rate with applications that meet the above requirements.
The cost of registering a Postnuptial Contract, including the High Court application, is estimated to be approximately R15,000.00 (excluding VAT) if the matter is not opposed.
Kindly note that if you own any property at the time of the application, the title deed and mortgage bond (if applicable) will need to be endorsed in terms of Section 45bis of the Deeds Registries Act. The conveyancing costs are not included in the above estimate and can only be determined in accordance with the value of their property.
For further information, or should you wish to instruct us, please contact us.