The conclusion of a marriage has far reaching consequences for the parties entering into such marriage, and it is especially important that they seek legal assistance so as to make decisions that are not to their detriment.
The issues of individual assets and liabilities form the bedrock of what parties entering into the marriage ought to discuss and agree on their preferences.
The Matrimonial Property Act 88 of 1984 provides for the matrimonial property systems under the South African legal framework.
According to this Act the systems recognised in South Africa are:
The Act introduced the Accrual system as well where spouses in a marriage relationship only share the profit increases in their separate individual estates during the subsistence of the marriage.
Before the commencement of the Act, the immutability principle applied which meant that once a marriage is concluded, the applicable matrimonial property system may not be changed, as was noted in Honey v Honey 1992 (3) SA 609 (W).
However, the legislature noted that this situation was untenable as changed circumstances may require that spouses change their matrimonial property system.
This is now possible under section 21(1) of the Matrimonial Property Act, whereby the parties may bring an application before the Court to change the matrimonial property regime that applies to their marriage. The following applies;
In Ex Parte Engelbrecht 1986 (2) SA 158 (NC) 160H the Court held that ‘sound reasons’ refer to the ordinary grammatical meaning of the words and must be convincing, valid and based on reality.
This effectively means sound reasons in any case must be decided upon circumstances of each case so there cannot be a blanket approach to what these are.
In bringing the application, the guidelines set out in the case of Lourens et Uxor 1986(2) SA 291 (C) are important. Alike guidelines were also adopted in other divisions of the High Court in pursuit of uniformity (e.g Ex Parte Le Roux; Ex Parte Von Berg 1990 (2) SA 70 (O), Ex Parte Madikiza 1995 4 SA 433 (Tk).
These guidelines are essentially the procedural requirements in bringing an application provided for under Section 21 (1) of the Matrimonial Property Act:
Changing the matrimonial property system prevailing in a marriage is possible under the Act and we stand ready to assist spouses in achieving such change. Contact us.
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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