There are three types of marital regimes in South Africa: a marriage in community of property, out of community of property and out of community of property with the inclusion of the accrual system. The default position in South African law is a marriage in community of property.
For couples to enter into marriages out of community of property with or without the inclusion of the accrual system, they must enter into an antenuptial contract (ANC) signed in the presence of a Notary Public and two witnesses, before the marriage ceremony is concluded. The ANC must also be registered with the Registrar of Deeds not less than three months after the ceremony.
But how does a couple change their marital regime if they have not entered into an ANC and realise that they should have; or perhaps they intended to enter into an ANC but did not have the chance to do so before the day of their ceremony; or they were simply ignorant of the law?
Unfortunately, married couples cannot simply enter into a post-nuptial agreement to rectify the situation. The only way to validly change your marital regime in South Africa is to launch a High Court application in terms of the Matrimonial Property Act, in which the following the requirements must be satisfied:
To avoid this very onerous and expensive exercise, couples must ensure that they seek legal advice and consider the consequences of all three marital regimes before they are married. Failing which, they may find themselves in the uncomfortable situation of having to consult an attorney and approach the Court to ensure that their financial position is protected.