Change of Matrimonial Property Regime
The general rule is that parties to a marriage cannot, by way of post-nuptial agreement, change their matrimonial property regime. The only valid way for parties to amend their ante-nuptial contract is in terms of Section 21(1) of the Matrimonial Property Act 88 of 1984.
The parties can jointly approach the High Court on application for an order to change their matrimonial property system and to authorise the entering into a notarial contract. Once the court authorised the entering into a post nuptial agreement, the agreement must be signed, notarised and registered with the Registrar of Deeds.
Requirements for an application in terms of Section 21 (1) of the Matrimonial Property Act
-
The Registrar of Deeds must be given notice of your desire to amend and in certain divisions a report from the Registrar must first be obtained;
-
The application must be published in the Government Gazette and two local newspapers at least two weeks before the hearing
-
Notice of the application must be given to all known creditors by registered post
-
Sound reasons, i.e. reasons which are convincing, valid and anchored in reality, must be advanced for the grant of the order.
-
The court must be satisfied that there will be no prejudice to third parties and the post-nuptial contract must contain an allegation that the rights of creditors will not be affected.
Contact B Gouws Inc. Attorneys today to assist you with the changing of your matrimonial property regime.
Late Registration of Ante-nuptial Agreement
Community of property comes into being as soon as a marriage is solemnised unless, prior to the marriage, the spouses have concluded an agreement excluding community of property. An ante-nuptial agreement to exclude community of property is binding upon the spouses, but does not bind third parties unless it is registered.
Registration of a properly executed ante-nuptial agreement must be effected within three months. If registration did not take place within the prescribed period, the spouses can approach the High Court in terms of Section 88 of the Deeds Registries Act 47 of 1937 by way of a joint application to authorise the Registrar of Deeds to register the agreement concluded between the parties. The application must be made within a reasonable time after it was discovered that the ante-nuptial agreement was not properly registered.
Requirements for an application in terms of Section 88 of the Deeds Registries Act 47 of 1937
-
The Registrar of Deeds must be given notice of the application
-
The application must be published in the Government Gazette and two local newspapers at least two weeks before the hearing
-
Notice of the application must be given to all known creditors by registered post
-
Sound reasons, i.e. reasons which are convincing, valid and anchored in reality, must be advanced for the grant of the order.
-
The court must be satisfied that there will be no prejudice to third parties and the post-nuptial contract must contain an allegation that the rights of creditors will not be affected.
Contact B Gouws Inc. Attorneys today to assist you with the late registration of your ante-nuptial agreement.
Annulment of Marriage
The High Court can be approached for an annulment of void and voidable marriages. When a marriage is void, the status of the marriage is that no marriage exists, since the legal requirements were not met to constitute a valid marriage. Where a marriage comes into existence but can be set aside by the court due to non-compliance with the Marriage Act 25 of 1961, such marriage is voidable.
Void Marriages
For a marriage to be valid and legally recognised, the legal requirements such as capacity to consent, consensus, lawfulness and formalities regarding the solemnising of the marriage must be met. If one or more of these requirement are not met, it will affect the validity of the marriage. Invalid marriages cannot be ratified.
Examples of void marriages:
-
where a party has concluded an informal marriage by consent without any formalities;
-
a marriage solemnised by a person who has not been appointed as a marriage officer;
-
a marriage celebrated in the absence of witnesses as required by Section 29 of the Marriage Act;
-
Marriage between persons within the prohibited degrees of relationship, such as persons related by blood or marriage (affinity);
-
Where one of the marital partners is already married to a third party at the time of the marriage;
-
A marriage by a person who has not yet reached the age of puberty;
-
A marriage by a male person under 18 or a female person under 15 without the consent of the Minister of Home Affairs as required by Section 26(1) of the Marriage Act;
-
A marriage by an insane person, as such persons are regarded as being incapable of entering into a valid marriage as they lack the necessary capacity to enter into the juristic act of marriage;
-
Where the marriage is the subject to an operative mistake such as a mistake to the identity of the other party.
Such principles applies to same-sex couples who entered into a civil union, with such changes as may be required by the context.
Where a void marriage is concluded, none of the consequences of the marriage come into effect, in particular:
-
Neither party is precluded from entering into another marriage;
-
There exist no duty to support one another;
-
the children born from the relationship are illegitimate
-
No matrimonial property regime exists between the parties.
Voidable Marriages
The status of a voidable marriage is that there is a valid marriage from the date of the marriage if it is not declared as null and void. The party entitled to approach the court for an annulment of the marriage is not bound to do so but has an election to remain married or to have the marriage annulled. The right of election is only available while the marriage exists and it will fall away upon the death of either spouse or if the entitled spouse renounces the right to seek annulment.
Examples of a voidable marriages:
-
When a woman is pregnant by a third party, unknown to her husband, at the time of the marriage;
-
When a marriage is concluded under duress;
-
Impotence and sterility at the time of the marriage;
-
A marriage by a minor without the necessary consent of his parents or guardian;
-
The marriage is voidable by reason of fraud, namely misrepresentation which induces the act of marriage;
Such principles applies to same-sex couples who entered into a civil union, with such changes as may be required by the context.
A voidable marriage is a valid marriage and therefore all results and consequences of the marriage will apply to the marriage until the annulment.
