It sometimes happens that parties get married in community of property and it was always there intention to get married out of community of property, with or without the accrual. Can this be changed? The answer is yes, it can, but it is a procedure that must be taken to the High Court.
I have heard on quite a few occasions from people that they did not know that a marriage which is out of community of property must be registered. A contract must be drawn up, and signed before a Notary, and the contract must be registered at the deeds office in order to be binding. I have sometimes been told by clients that their intention was to get married out of community of property and they declared to each other this intention. But declaring the intention to each other is unfortunately not enough. It is like declaring each others wishes to each other after death, without making a will, it is not valid.
When parties are married by civil law, which is then registered by the marriage officer, they are automatically married in community of property. They do not have to sign any contract or declaration beforehand, it is by operation of law and by default. However, if parties wish to marry out of community of property, with or without the accrual system, they must sign an antenuptial contract before the marriage. This can be signed at anytime before the marriage, but it must be registered within three months of the signing of the contract.
So sometimes, for whatever, reason, the parties have signed an antenuptial contract and it was not registered, or it was not registered on time. The parties can then approach the High Court on application and ask that their marriage change from in community of property to one of out of community of property. All creditors of the parties will have to receive notice of this application and they would have the right to object. The credit providers would only object if such a change of matrimonial property regime would be prejudicial to them. The deeds office would also have to receive notice (and no objection made) and the notice of the intention to enter into the antenuptial contract must be published in a local newspaper and a government gazette.
The advantage of changing your marital property regime to one of out of community of property would be that each party would be able to have his or her separate estate and not require permission from the other if they would wish to purchase a car or a house. There are also advantage of being marriage in community of property, in that each shares equally in the increase of the estate, whether it be on death or divorce. As with most things legal, one would have to consider the matter on the merits of each case and then decide whether it is necessary or recommended that you change your marital property regime.
Attorney @ Kim Armfield & Associates Inc.
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