POST-NUPTIAL AGREEMENTS

POST-NUPTIAL AGREEMENTS: IT IS POSSIBLE TO ALTER THE PROPRIETARY CONSEQUENCES OF MARRIAGE BY COURT ORDER

Under common law the election of a matrimonial property regime became final upon the marriage of the spouses, and they could not change their proprietary relationship, after the marriage was concluded.

This position was amended by the Matrimonial Property Act 88 of 1984, and more specifically Section 21 (1) thereof. This section provides that parties may jointly apply to the High Court to amend their matrimonial property regime, subject thereto that the following requirements are met:-

• There must be sound reason for the proposed change.
• Notice of the intention to change must be given (before date of the application) as follows:
• Notice to the Registrar of Deeds
• The Government Gazette (and two local news papers)
• To all known creditors (by certified post)
• The draft Notarial Contract (which the parties intend to register) must be annexed to the application.
• A statement that no other person will be prejudiced by the proposed change.
• A statement that no rights of existing creditors will be affected by the proposed change of matrimonial regime.
• The application must contain sufficient information pertaining to the assets and liabilities of the parties, to enable the court to ascertain whether or not there are sound reasons for the proposed change, and whether or not any particular person will be prejudiced by the change.

The aforementioned amendment can only be implemented after a court order has been obtained, providing consent for the proposed Notarial Contract to be registered in the relevant Deeds Office.

A husband and wife, whether married before or after the commencement of the Matrimonial Property Act (1 November 1984), may jointly apply to court for leave to change the regime which apply to their marriage. This enables spouses to request the court for an order in terms whereof: –

1. The marriage in Community of Property is changed to a Marriage where Community of Property is excluded.

1. The marriage in Community of Property is changed to a marriage where community of Property is excluded (Subject to the Accrual System).

1. The marriage Out of Community of Property is changed to a marriage In Community of Property.

The legislature has not elaborated on the requirement to provide “sound reason” to vary the contractual relationship that exist between the spouses.

Grounds which the courts accepted in the past include:

1. Pressure by a guardian or parent to adopt a particular property regime that are contrary to the parties’ true wishes.
2. A material change in the circumstances of the parties that were not foreseen at the time of marriage.

• The parties did not fully appreciate the effect of the regime that was adopted by them.

The court will however not authorise the amendment, where the reasons provided by the parties are frivolous, patently unfair to one spouse or unduly complicated.

In order to make sure that there will be no prejudice suffered by third parties (mainly their creditors), the court may decide to issue an interim order (with a return date), to allow additional opportunity for third parties to state their objections.

Usually, the mere fact that the spouses desire the change, and have agreed upon it for reasons which the Court can understand, should be sufficient.

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