South African law deems a couple as being married in community of property, if the couple did not execute an ante nuptial contract prior to their marriage. More couples are realizing that a marriage in community of property holds few benefits, as the risk and exposure financially or in the event of insolvency of one party affects both parties to a marriage in community of property.
Does our law permit a couple to change their matrimonial property system?
Indeed, even though the procedure is not as quick and easy as the registration of an ante nuptial contract, it is still possible and remains a good choice for couples married in community of property.
A Postnuptial Contract can be registered in terms of Section 21(1) of the Matrimonial Property Act. This application is brought by one of the parties, with the assistance of the other spouse. The application has to be brought before the court, which will give an order for the registration of a postnuptial contract. After the order is granted, the parties will sign a postnuptial contract which will be registered in the Deeds Office. The postnuptial contract can then be concluded as out of community of property, with or without the accrual.
Why must the application be brought before court?
- The High Court deals with the change in status of parties (from being married in community of property to being married out of community of property);
- A couple married in community of property has a communal estate, meaning that all the assets and liabilities form part of the communal estate;
- When the couple decides to change their matrimonial property regime, the creditors might be prejudiced by the change in the matrimonial property regime;
- It is also important to note that both spouses must consent to the change, and neither of the spouses must be insolvent or have sequestration proceedings, or judgments against them, as the creditors (who are notified of the change in marital regime) might oppose the application in court.
Costs involved in the application process and registration of a postnuptial contract:
The only difference between the registration of an ante nuptial contract and a postnuptial contract lies in the application to court, which can be costly.
Our costs are as follows:
|Taking instructions, first consultation, drafting of the Founding Affidavit, Supporting Affidavit, Notice of Motion, drafting letters to creditors, Drafting of Advertisements and placement thereof, instructions to advocate in the form of a brief , including delivery of brief to advocate.||R7,500.00|
|Attendance to Court to obtain a case number and court date and subsequent lodgment of Documents at the Deeds Office for obtaining the deeds office report, cost involved||R550.00|
|Delivery of Court documents at the Deeds Office for obtaining the report, lodgment of court documents, collection thereof and deeds offices fee in obtaining the report||R1,200.00|
|Provision for S.21(1) Advertisements: Local Newspaper, as well as advertisement in the Government Gazette||R3,000.00|
|Sending copy of the advertisement in the Local Newspaper, as well a Government Gazette to each and every creditor by registered mail||R1,500.00|
|Advocate’s Fee for application at Court||R950.00|
|Drafting of Antenuptial Contract, attending to execution thereof before Notary Public, and attending to registration thereof in the Deeds Registry||R2,050.00|
|Deeds Office fee||R280.00|
|General Postage and Petties||R520.00|
Please note that the costs may escalate in the event that the application is opposed.
Should the parties be the registered owners of immovable property, the title deeds have to be endorsed in terms of section 45bis. These costs can only be determined in accordance with the value of the property, which costs are not included in the above fee table.
Kindly contact us to obtain more information about the above application and to set up a consultation.