By far the most common reason a section 21 application is brought is to change from being married in community of property to being married out of community of property — either with or without the accrual system. This page sets out what is involved.
Why couples change
The friction of section 15 of the Matrimonial Property Act, the sequestration consequence under section 17(4) of the Insolvency Act, and the constraints on estate planning are the most common drivers. Some couples have always intended to be married out of community of property and signed an antenuptial contract that was never registered. Others have been married for many years and changed circumstances — a new business venture, a change of profession, a financial-planning recommendation — make the in-community-of-property regime no longer fit.
The route
The section 21 process applies. Joint application by both spouses, sound reasons set out in the founding affidavit, notice to all creditors by Government Gazette and registered post, the mandatory creditor-protection clause in the order and the notarial contract, notarial execution after the order is granted, and registration at the Deeds Office.
The choice between with and without accrual
The choice belongs to the couple. At the consultation stage, we work through the implications of each. The pages on Out of Community Without Accrual and Out of Community With Accrual summarise each regime.
What changes when the order is granted and the contract is registered
- Each spouse holds a separate estate from the date of registration.
- The section 15 consent requirements no longer apply.
- Section 17(4) of the Insolvency Act no longer has the consequence of joint sequestration.
- If accrual is included, the growth of each estate from the date of registration is shared between the spouses at the end of the marriage.
- Debts incurred up to the date of registration remain governed by the previous regime, and the rights of those creditors are expressly preserved by the mandatory creditor-protection clause.