A married couple cannot generally replace their matrimonial-property system simply by signing a private document and treating it as a new antenuptial contract. Section 21 of the Matrimonial Property Act provides a court route for a joint application, with safeguards for creditors and other affected people.
Hugh Raichlin Attorneys can assess whether that route is suitable and what documents, notices and notarial work are needed. The purpose of the first discussion is to understand why the couple wants the change and whether both spouses genuinely support it.
What the court needs to consider
The Act requires sound reasons for the proposed change, sufficient notice to creditors and the absence of prejudice to another person. Those requirements are substantive. A couple’s agreement is important, but it does not by itself establish that the change should be authorised.
Where the application is granted, the court may authorise the spouses to enter into a notarial contract regulating their future matrimonial-property system, subject to the order. The precise terms and implementation should be handled together.
Explain the reason with supporting facts
A proposal may arise from business exposure, misunderstanding at the time of marriage or a considered change in financial arrangements. Explain the actual circumstances rather than relying on a generic paragraph. The proposed system must also be described accurately, including whether accrual is to apply and how relevant values or exclusions will be addressed.
A change must not be presented as a way to make existing debts vanish or place assets beyond legitimate claims. Existing rights and obligations require proper analysis. Silence about a creditor can undermine the application and create further risk.
Prepare a joint information pack
- Marriage certificate and any existing ANC or court order.
- Both spouses’ identity and contact information.
- A list of assets, ownership, liabilities and creditors.
- Relevant company, trust and property interests.
- Documents supporting the reason for the proposed change.
- The proposed allocation of assets and liabilities and the intended future regime.
- Any pending litigation, execution process or financial distress that could affect other people.
Do not confuse three different documents
An antenuptial contract is concluded before marriage with the required formalities. A court-authorised postnuptial arrangement changes the system during marriage through the applicable process. A divorce settlement addresses the consequences of ending the marriage. The documents may cover related financial subjects, but they are not interchangeable.
Likewise, an informal promise to share a particular asset can raise contractual questions without necessarily changing the entire matrimonial-property regime. Obtain advice on the intended effect rather than choosing a label and assuming the result.
Plan the implementation, not only the court hearing
- Agree on the objective and obtain advice on the proposed regime.
- Collect a complete financial picture and identify people entitled to notice.
- Prepare the application, draft contract and supporting material suited to the case.
- Comply with the notice and court requirements.
- Complete the authorised notarial and registration steps and update related estate-planning documents.
Questions clients ask
Can one spouse apply to change the system without the other agreeing?
The section 21 route discussed here is a joint application. A disputed situation may involve different remedies and should not be treated as the same process.
Will the order release us from existing bank debt?
Do not assume so. Creditor rights, the order and the underlying agreements must be assessed. The statutory safeguards exist partly to protect affected third parties.
Can we backdate the contract to our wedding?
Do not backdate documents. The legal effect and effective arrangements must follow the applicable law and the court’s order.
Get the proposed arrangement checked
HRA can combine matrimonial, notarial and property advice where the change affects several documents. Send a brief outline and indicate whether both spouses agree. The initial telephone discussion is for suitability; fees and the scope of an application must be confirmed before engagement.
Discuss matrimonial and notarial advice
Review the related estate plan
General information only. Court approval is not guaranteed and the required evidence depends on the circumstances.