Guide to Changing a Matrimonial Property Regime and Section 21 Applications

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1. Understanding Matrimonial Property Variations

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Many couples discover after marriage that their chosen, or default, matrimonial property system no longer aligns with their financial goals or personal circumstances. Whether married in community of property and seeking to protect assets, or wishing to alter an existing out-of-community arrangement, South African law provides a formal mechanism to make these changes.

 

Section 21(1) of the Matrimonial Property Act 88 of 1984 (MPA) allows spouses to apply to the High Court to vary their marital regime. This is a legal process that requires Court approval because it cannot be completed privately without oversight.

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2. Core Requirements for Variation

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The High Court will grant an order to change a matrimonial property system only if specific criteria are met. These include:

 

2.1 Joint Application

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Both spouses must bring the application together.

 

2.2 Sound Reasons

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The proposed change must be justified with facts that are convincing, valid, and grounded in reality. For example, demonstrating that a marriage in community of property restricts business activities due to limited contractual capacity may constitute a sound reason.

 

2.3 No Prejudice to Others

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The Court must be satisfied that third parties, including creditors, will not be prejudiced.

 

2.4 Notice to Creditors

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Adequate notice must be given to all known creditors.

 

2.5 Applicability

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This process applies to all marriages, including those solemnised outside South Africa.

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3. The Section 21 Procedure

 

The procedure for applications to vary a matrimonial property system was established in Ex parte Lourens et Uxor 1959 (2) SA 521 (T) and sets a national standard. The main steps are:

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Step 1: Registrar of Deeds

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Notify the Registrar, including details of any immovable property affected.

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Step 2: Public Notice

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Publish notice of the intended change in the Government Gazette and in two local newspapers at least two weeks prior to the Court hearing.

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Step 3: Creditor Notification

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Notify all known creditors via registered post with a verified list included in the application.

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Step 4: Financial Disclosure

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Provide full disclosure of assets, liabilities, any past sequestrations or rehabilitations, and pending debt-related legal proceedings.

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Step 5: Draft the Contract

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Annex a draft of the proposed notarial contract to the application, available for public inspection at the High Court and the attorney’s office.

 

Once the Court grants the order, the existing matrimonial property regime ceases to apply. Spouses then execute the new notarial contract before a notary, which is subsequently registered in the Deeds Office, in the same manner as an antenuptial contract.

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4. Important Considerations for Spouses

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4.1 Sound Reasons Are Essential

 

Mere convenience or a simple change of mind does not meet the legal standard.

 

4.2 Financial Status Disclosure

 

The application must disclose whether either spouse is under debt review or declared over-indebted under the National Credit Act 34 of 2005.

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4.3 Supplementary Affidavits

 

Any material changes in financial circumstances prior to the hearing must be reported to the Court.

 

4.4 Legal and Financial Implications

 

Changing the matrimonial property regime can affect asset ownership, debt responsibility, and wealth distribution, making careful planning essential.​

 

5. Seek Legal Support

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Section 21 applications involve strict Court procedures and significant legal and financial consequences. Expert legal guidance ensures that:

• The application complies fully with statutory requirements.

• Assets, debts, and financial rights are properly protected.

• The new regime is valid, enforceable, and tailored to your circumstances.

 

Professional legal assistance is available through a consultation, providing a clear strategy and confidence in navigating this complex process while safeguarding your long-term financial security.