May 29, 2020

A big decision before your big day

A decision handed down by the Constitutional Court this week underscored the importance of deciding which matrimonial property system you want to apply to your marriage before you get married.  An application for leave to appeal a Supreme Court of Appeal decision was dismissed. 

In terms of the Matrimonial Property Act, if you want to be married out of community of property, you must execute an antenuptial contract before you get married, and the contract must be registered in the deed office.  The contract must also say whether or not the accrual system will apply to your marriage.

If you want to be married in community of property, then you choose not to execute an antenuptial contract.

It is possible to change from being married in community of property to out and vice versa; the Matrimonial Property Act provides for this, but before you execute the necessary agreement you just obtain a court order saying that you may do so.

A couple was married out of community of property without the accrual system. The wife was apparently concerned about her financial security in the event of a divorce and prepared a contract for her husband to sign. The contract provided that the antenuptial contract was cancelled and that the wife was entitled to half of the husband’s estate. The wife did not apply for a court order authorising the execution of the contract to change the matrimonial property regime. At the time that the agreement was signed, no divorce was contemplated. 

The couple subsequently divorced. In the divorce court (the Regional Court), the wife relied on the agreement. The court rejected it and said that it was invalid, because the process set out in the Matrimonial Property Act (including the obtaining of a court order) was not followed. The wife then averred that the agreement was a settlement agreement; this was also rejected, on the grounds that a divorce was not contemplated when the agreement was signed.

The wife appealed to the High Court, which overturned the Regional Court decision. The husband, in turn, appealed to the Supreme Court of Appeal, which held that the Regional Court had got it right.

The law is clear: if you change your mind about your matrimonial property regime or if you forget to arrange an antenuptial contract before you get married and end up married out of community of property, the only way that you can change it is by way of an application to court. This is an expensive exercise.

Make sure that you carefully consider which system you want to apply to hour marriage and that you take the necessary steps in good time before your big day.

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