Changing from IN COMMUNITY OF PROPERTY to OUT OF COMMUNITY OF PROPERTY
In South Africa, many couples enter into marriage "in community of property" without fully understanding the implications it has on their financial well-being. Over time, circumstances may change, leading couples to explore how they can switch to "out of community of property."
At MJM Attorneys, we specialise in assisting couples with this transition. In this article, we’ll explore why couples might consider changing their marital property regime, the steps involved, and how we can help.
Why Change from In Community of Property to Out of Community of Property?
1. Financial Independence: In a marriage in community of property, all assets and liabilities are shared equally between spouses. This includes both debts and credit. Couples may want to change their marital regime if one spouse incurs significant debt, placing the other’s assets at risk.
2. Business Ventures: If one spouse is involved in a business venture, having an out of community of property marriage can protect the other spouse's assets from any business-related liabilities or losses.
3. Estate Planning and Inheritance: Changing to *out of community of property* allows each spouse to manage their estate individually, which can be more advantageous for estate planning purposes, especially when inheritance and legacies are involved.
4. Insolvency Concerns: Should one partner face insolvency or significant debt issues, remaining in community of property can place the entire estate at risk. In these cases, switching to out of community of property can offer a protective financial buffer.
The Process of Changing Your Marital Regime
1. Obtain Consent from Both Spouses
Before the process can begin, both spouses must agree to change the marital regime. This consent is necessary as it affects both parties' assets, liabilities, and overall financial standing.
2. Application to the High Court
The couple must make an application to the High Court for permission to change their marital property regime. This process requires the assistance of an experienced attorney who will draft and file the necessary documents, ensuring compliance with legal requirements.
3. Drafting a Postnuptial Contract
Once the court grants permission, a notary public will prepare a postnuptial contract outlining the new terms of the marriage. This contract will replace the in community of property regime with out of community of property with or without accrual, depending on the couple’s choice.
4. Notifying Creditors
To ensure transparency, the couple must notify their creditors of their intention to change their marital regime. This allows creditors to raise any objections if they believe the change will affect their ability to recover debts.
5. Registration of the Postnuptial Contract The postnuptial contract must be registered with the Deeds Office to make the change official. Only after this registration is the new marital regime legally recognised.
6. Amend Financial Records
After the change is effected, both spouses must update their financial records, including insurance policies, wills, and other estate planning documents.
Why Choose MJM Attorneys? Changing your marital regime is a complex process that requires expert legal advice. At MJM Attorneys, we specialise in matrimonial law and have helped numerous couples successfully navigate the transition from in community of property to out of community of property. Our team will guide you every step of the way, ensuring that your rights are protected and the process is as smooth as possible. If you’re considering changing your marital property regime, contact us today for a consultation.
By seeking professional assistance from MJM Attorneys, you can make informed decisions to protect your financial future and ensure the legal process is handled efficiently.
You can reach us at: Call: 015 023 0013 / 079 809 1300 Email: info@mjmattorneys.co.za