South African law dictates that if you marry without an antenuptial contract, you are automatically bound in community of property. This means that your estates – assets, liabilities, and everything in between – merge with that of your spouse.
But what if you learn about the implications of this legal position only after tying the knot? Is it too late to change your marital regime? Here's everything you need to know.
The Reality of "In Community of Property"
When married in community of property, both spouses share equally in all assets and debts, regardless of who acquired them. It's a default position if no antenuptial contract is signed. Many couples, unaware of the implications, find themselves bound by a legal condition they never intended.
The Good News: Changing Your Marital Regime is Possible!
Despite the inability to execute an antenuptial contract post-wedding, there's a silver lining. Couples can shift from "in community of property" to "out of community of property" by making an application to the nearest High Court to modify their matrimonial system.
Essential Documentation for the Change
To initiate the change, the couple needs a set of documents:
Identity documents or passports for both parties.
Marriage certificate.
Reasons for not executing an antenuptial contract before the wedding.
Reasons for seeking a postnuptial agreement now.
Address proofs.
Income tax numbers, if applicable.
Job details.
Names and birth dates of children, if any.
Detailed list of assets (movables, immovables, investments, cash).
A list of creditors, supported by recent statements.
It's imperative to note that the High Court will check if all creditors are adequately informed about your intention and that no one opposes it. Additionally, there should be no prejudice; a change in regime shouldn't be a route to escape significant debt by a spouse.
Understanding Marital Regimes in South Africa
South Africa recognizes three types of marital regimes:
In Community of Property: All assets and debts, regardless of who acquired them, are shared equally.
Out of Community with Accrual System: Each spouse has separate assets and liabilities. However, the growth in value of each estate during the marriage is split equally upon the marriage's dissolution.
Out of Community without the Accrual System: Similar to the accrual system, but there's no division of the accrual between the spouses.
Procedure & Costs
Altering a marital regime involves legal expenses, including notices in newspapers and the Government Gazette. The process can span 2-3 months, depending on the High Court's availability. Once approved, a postnuptial agreement must be registered within three months.
In Essence
While South African law allows for the modification of marital regimes post-marriage, the process can be intricate, lengthy, and costly.
Therefore, it's recommended that couples seek legal counsel before marriage to make informed decisions about their marital regime.
Legal Contacts
If you are interested in discussing this matter further, please feel free to schedule an appointment or reach out to one of the legal companies on The Go-To Guy that you can find by clicking on the image below, which will direct you to legal section on the website. Your future self might thank you.
