Wedding bells are ringing, and the legal niceties of how the marriage will affect your “matrimonial property system” may not be high on your priority list. They should be – your choice of marital regime now is critical. You don’t want for example to find that you can’t get a mortgage bond or have your estate sequestrated because of your spouse’s debts, a danger if you end up married in community of property.
We recap briefly on the three choices available to you, stress once again the necessity of choosing before you marry, and explore the possibility of changing your marital regime after marriage if you got it wrong before.
“A journey is like marriage. The certain way to be wrong is to think you control it” (John Steinbeck)
One of the most important decisions you must make before you marry is what “marital regime” (“matrimonial property system”) you want to apply to your marriage.
To recap, you have three choices –
“Oops, we made the wrong choice; what now?”
A surprising number of couples tie the knot without any thought for the legal consequences, and only later do they learn that because they had no ANC they are married in community of property with all that that entails.
Or perhaps they did think it through but made the wrong choice at the time. For example, you could find yourself needing to improve your personal credit record, perhaps after applying to a bank for a mortgage bond and being rejected because of your spouse’s debts.
The good news is that all is not lost – you can still change regimes with a “postnuptial contract”. The bad news is that we are talking an expensive application to court here, and there are various requirements which may frustrate your application.
A court order is essential
The Matrimonial Property Act specifically allows a married couple to “jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage”.
You will have to satisfy the court of three things, namely that –
(a) there are sound reasons for the proposed change;
(b) sufficient notice of the proposed change has been given to all the creditors of the spouses; and
(c) no other person will be prejudiced by the proposed change.
The couple who didn’t get court authority
Ask your lawyer before you marry which marital regime is best for you. And if you didn’t do that, or if you change your mind later, you must ask a court to authorise your change of regime.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)