How to change your matrimonial property system

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Gavel And Books by hywardsIntro

The Matrimonial Property Act introduced ways to change the consequences that arose when a marriage was celebrated.

For example:
• Couples who married before or after the commencement of the Act can apply to court to change the applicable matrimonial property system;
• Either spouse whose conduct in administering the joint estate (in a marriage where joint administration operates) becomes intolerable, may have his or her powers of administration suspended by the court for a period.

 

 

 

Applying to court

A couple may at any time make a joint application to court to have their matrimonial system changed. They can do this regardless of whether the marriage took place before or after the promulgation of the Act or of the system chosen. The court must, however, be satisfied that:
• There are sound reasons for the change;
• Creditors have been notified sufficiently in advance;
• No other person will be prejudiced.
If permission, that is, an order of court, is granted, the couple will be authorised to enter into a notarial contract to give effect to their new choice.

Protection your assets from your spouse

If during the course of a marriage in community of property, or one subject to the accrual system, a spouse's interests are (or are likely to be) seriously prejudiced by the conduct of the other, he or she can apply to court for an order for the immediate division of the existing joint estate or the accrual.
The court may order an equal division or a division on any other basis that it considers fair. The court's power of division amounts to a judicial discretion to depart from the consequences that flow from the matrimonial system on the grounds of the economic misconduct of one spouse. If the court grants such an order, it may also direct that the community of property or the accrual system should, in future, cease to operate in the marriage.
Alternatively, if a husband is a spendthrift who prejudices his wife's interest in the joint estate, his wife can simply apply to the court to have his administration suspended and, if necessary, appoint a curator, who may be the wife. In this case, community of property will continue.