If you do not execute an antenuptial contract prior to getting married, your marriage will be regarded as 'In Community of Property' in terms of South African law. The result would be the same if you signed a contract, but it somehow was not registered in the Deeds Office within three (3) months from the date of signature.
Although it is possible to change your matrimonial property regime from 'in community of property' to 'out of community of property' by registration of a Postnuptial Contract in terms of Section 21(1) of the Matrimonial Property Act, it can be an expensive exercise.
Similarly, if your marriage contract was not registered timeously, you may apply to court for permission for late registration of your antenuptial contract in terms of Section 88 of the Deeds Registries Act.
The legal procedure involves a joint application to the High Court by both marriage partners, requesting the Court to grant leave to sign and/or register the antenuptial contract.
In order for the parties to change their matrimonial property regime, the Act provides for the following:
If neither spouse is insolvent and neither spouse has any judgments or pending legal action against them, then the application will succeed. If this is not the case, then there is chance that creditors may object to the application.
Contact our attorneys in Johannesburg if you wish to change your matrimonial property system. It is not too late to get this right. We can assist with all legal matters relating to marriage and matrimonial property.
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