How can I change my marriage from being in community of property to be out of community of property?

The long answer

The law that applies here is Section 21(1) of the Matrimonial Property Act 88 of 1984. This law says that you and your spouse can apply jointly to the high court for permission to change from ‘in community of property’ to ‘out of community of property’.

Neither you nor your wife can apply on your own: the application has to be with the agreement and consent of both spouses.

The way this is done is to apply to the high court, jointly with your wife, for permission to sign a notarial contract, which must be registered at the Deeds Office. Once it is registered at the Deeds Office, it will be the same as having an ante-nuptial contract, which means you are no longer married in community of property.

But it is a long and expensive process, which could easily take three months and could cost as much as R15,000 in legal fees.

All of the following things must be done:

• You and your spouse must give written reasons for making the proposed change and you have to show that neither of you is insolvent (declared bankrupt) and that neither of you has any judgment or legal action against you. The court must be satisfied that no other person will be worse off because of the proposed change.

• You have to put a notice in two local newspapers and the Government Gazette informing creditors of the proposed change at least 14 days before the court application is heard.

• You will also have to send notices to your creditors, (e.g. the bank) by registered mail that you want to change your marriage from ‘in community of property’ to ‘out of community of property’.

• For the high court application, you and your wife must have certified copies of your IDs, marriage certificate, proof of address and income tax numbers.

• You will also have to provide information about your children if they are minors, as well as your employment, your assets and liabilities and a full list of all the people you owe money to (existing creditors).

Wishing you the best,
Athalie