The matrimonial property regime that governs a marriage is the legal system that determines who owns what during the marriage, who consents to what, and what happens when the marriage ends. In South Africa, three regimes are recognised:
- in community of property;
- out of community of property without the accrual system; and
- out of community of property with the accrual system.
The regime applying to a marriage is fixed at the date of marriage, by operation of law or by an antenuptial contract. It does not change automatically. If the regime needs to change after marriage, a formal legal process is required: a joint application to the High Court for leave to change the regime under section 21 of the Matrimonial Property Act 88 of 1984, followed by the execution and registration of a notarial postnuptial contract.
This page explains how that process works and what the court considers.
WHY SPOUSES CONSIDER CHANGING THE REGIME
We see a recurring set of reasons in our office.
Business risk and professional liability. Where one spouse begins to trade in his or her personal name, takes on a position that exposes him or her to professional liability, or stands surety for a business, the in-community-of-property regime exposes the joint estate to those risks. Section 17(4) of the Insolvency Act 24 of 1936 has the consequence that the sequestration of one spouse in a marriage in community of property sequestrates the joint estate as a whole. Spouses who recognise the exposure often seek to change to an out-of-community regime.
Estate planning. Spouses married in community of property hold their assets in undivided half-shares in a single joint estate. On the death of one spouse, the joint estate is frozen pending finalisation of the deceased estate. Neither spouse can make meaningful individual provision in his or her last will and testament for assets that legally belong to both. For spouses who want differentiated planning — for example, where one wishes to leave assets to children from a prior relationship — the in-community regime becomes a constraint.
Investment and tax planning. Differentiated investment strategies suited to each spouse’s profession, risk profile and tax position can be difficult to implement when assets are held in a single joint estate. Couples who want each spouse to hold and manage a separate estate sometimes pursue a change of regime to enable that.
The friction of section 15 consent. Section 15 of the Matrimonial Property Act requires the consent of the other spouse — sometimes in writing, sometimes attested by two competent witnesses — for an extensive list of transactions: alienating, mortgaging or burdening immovable property in the joint estate; alienating shares, debentures, insurance policies or similar investments; binding oneself as surety; entering into a credit agreement under the National Credit Act 34 of 2005; and alienating or burdening assets used in a profession, trade or business. For commercially active spouses, these consent requirements can become a real impediment to day-to-day decision-making.
An antenuptial contract that was not registered. Some couples signed an antenuptial contract before their wedding but never had it registered at the Deeds Office within the three-month period required by section 87 of the Deeds Registries Act 47 of 1937. The default consequence is that the marriage is in community of property despite the parties’ original intention. A section 21 application enables the regime to be brought into line with the original intention, prospectively.
A change in family circumstances. A second marriage, a blended family, the arrival of children, or a change in financial responsibility may shift a couple’s view of what regime is right for them.
Each of these is a legitimate consideration. None of them, on its own, is a guarantee that the court will grant the application. The court must still be satisfied that the requirements of section 21 are met.
WHAT THE COURT IS REQUIRED TO CONSIDER
Section 21(1) of the Matrimonial Property Act sets out three requirements. The court must be satisfied that:
(a) there are sound reasons for the proposed change; (b) sufficient notice of the proposed change has been given to all the creditors of the spouses; and (c) no other person will be prejudiced by the proposed change.
These are the words of the statute and they are the framework around which the founding affidavit, the creditor-notice machinery, and the proposed notarial contract are built.
Sound reasons
The reasons must be supportable on the facts as deposed to. The court is not looking for dramatic justification, but it is looking for reasons that make sense — business-risk concerns, estate-planning needs, the consequences of section 15 consent requirements, an early failure to register a properly intended antenuptial contract, or other factual considerations honestly set out. Founding affidavits in this area are usually structured around the specific reasons that apply to the matter, supported by evidence where possible.
Sufficient notice to creditors
The Pretoria Practice Directive on changes of matrimonial regime requires:
- publication of a notice in the Government Gazette in the prescribed form;
- a Registrar of Deeds report obtained before the advertisement is placed;
- registered-post notice to every creditor at least three weeks before the hearing, with a covering letter setting out the date, time and court of the hearing, the full names and ID numbers of the spouses, their residential addresses and places of employment in the preceding 12 months, the effect of the proposed order, and a statement that a creditor whose interests will be prejudicially affected may appear to oppose;
- the name, address, amount owing, and cause of action of every contingent and other creditor set out in the application; and
- a supplementary affidavit filed proving compliance with the notice requirements.
These steps are not optional. The court will refuse the application if it is not satisfied that notice has been given as required.
No prejudice to creditors or other persons
The order, the notice of motion and the notarial contract each contain a creditor-protection clause expressly preserving the rights of every creditor of the spouses as at the date of registration of the contract. The standard wording mirrors across the three documents:
This Order shall not prejudice or restrict the rights of any creditor of any of the Applicants as at the date of registration of the Postnuptial Contract.
This wording reflects firm practice and is consistent with what the courts expect to see in section 21 orders.
THE NEW REGIME OPERATES PROSPECTIVELY
This is the single most important practical point on this page.
The new matrimonial property regime takes effect from the date the notarial postnuptial contract is registered at the Deeds Office. It does not operate retrospectively. The court will not authorise a retrospective change. Debts incurred under the previous regime remain governed by that regime. Assets acquired under the previous regime are dealt with by the new contract in a manner that respects existing creditors’ rights.
This means a section 21 application is not a tool for “rewriting history”. It is forward-looking. It changes the regime from registration onward.
CHANGES THAT ARE COMMONLY SOUGHT
The most common change is from in community of property to out of community of property — either with or without the accrual system. The choice between accrual and no accrual depends on the parties’ preference about whether to share the growth in their estates over the future course of the marriage. We discuss this with each client at the assessment stage.
Less commonly, spouses seek to introduce or exclude the accrual system as part of an out-of-community regime that already exists by virtue of a registered antenuptial contract. The mechanism is the same: section 21 application, court order, fresh notarial postnuptial contract, registration.
Section 21 grants leave to change the regime; it is not the appropriate vehicle for transferring specific assets between spouses or for other relief that has nothing to do with the regime itself. Our office will tell you at the assessment stage whether the relief you are seeking is appropriately structured as a section 21 application.
CHANGES THAT CANNOT BE MADE BY WAY OF SECTION 21
Some matters cannot be dealt with by a section 21 application. The most important examples are:
- Where a spouse has not consented. The application is joint and both spouses must support it.
- Where a divorce is pending or contemplated. Patrimonial questions in those circumstances are dealt with within the divorce proceedings, not as a section 21 application.
- Where one or both spouses are sequestrated, under debt review, or facing business rescue. The creditor-prejudice limb of section 21 is highly likely to defeat such an application.
- Where the application appears to be designed to defeat creditors. The court will refuse on the no-prejudice limb.
- Where the relief sought is not a change of regime but, for example, the transfer of a specific asset.
In each of those cases our office will tell you so at the assessment stage. Where a different process is appropriate, we will say what it is.
CUSTOMARY-MARRIAGE COUPLES
Where a customary marriage was concluded between the parties before a civil ceremony, the position is now governed by the Constitutional Court’s ruling in VVC v JRM and Others (CCT202/24) [2026] ZACC 2. The two ceremonies are treated as one continuous marriage. The matrimonial property regime that took effect at the customary marriage carries over into the civil marriage.
If you and your spouse are in this position, a section 21 application is the only route to change the regime. An antenuptial contract signed between the customary rites and the civil ceremony is, on the authority of the Constitutional Court, invalid for that purpose. Each matter of this kind requires its own assessment.
Read more on customary marriages and postnuptial contracts →
WHAT THE PROCESS LOOKS LIKE FROM YOUR SIDE
From your perspective as a client, the process is:
- You complete our online application.
- We assess and either advise that we can proceed, or that we cannot.
- We collect the documents.
- We draft the papers and the proposed notarial contract.
- We obtain the Registrar of Deeds report.
- We arrange the Government Gazette notice and the registered-post creditor letters.
- The matter is set down and heard in the High Court.
- If the order is granted, the notarial contract is signed before the Notary Public.
- The contract is lodged for registration at the Deeds Office.
- We send you the registered contract and report back to you.
See the full step-by-step process →
TYPICAL TIMING
Typically three to five months from instruction to registered notarial contract, subject to:
- the High Court roll in the relevant Division;
- the time required to obtain the Registrar of Deeds report;
- the creditor-notice period (registered post + at least three weeks before hearing);
- the Government Gazette publication cycle;
- the Deeds Office turnaround for registration.
Our office will give you a realistic timing estimate at the assessment stage, scoped to your matter.
TYPICAL COST
Our office’s all-inclusive fee starts at the order of R20 000, scoped to the specific facts of the matter. The fee typically covers attorney and notarial fees, advocate fees for the High Court hearing, Government Gazette notice, registered-post notices to creditors, the Registrar of Deeds report fee, and the Deeds Office registration costs.
A precise fee estimate is given after our office has reviewed the online application.
If you and your spouse would like our office to assess whether a section 21 application is appropriate in your matter, please complete the online application. We will review your information and advise on the next step.
Find out whether this applies to you
Your application will be reviewed by our office. Completing the form does not create an attorney-client relationship and does not guarantee the success of any application that may follow.