Matrimonial Property Act, 1984/1988-12-02

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as amended by

Matrimonial Property Amendment Act, No. 91 of 1986 Intestate Succession Act, No. 81 of 1987 Marriage and Matrimonial Property Law Amendment Act, No. 3 of 1988

21. (1) A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage, and the court may, if satisfied that—

there are sound reasons for the proposed change;

sufficient notice of the proposed change has been given to all the creditors of the spouses; and

no other person will be prejudiced by the proposed change,

order that such matrimonial property system shall no longer apply to their marriage and authorize them to enter into a notarial contract by which their future matrimonial property system is regulated on such conditions as the court may think ﬁt.

(2) (a) Notwithstanding anything to the contrary in any law or the common law contained, but subject to the provisions of paragraphs (b) and (c), the spouses to a marriage out of community of property—

entered into before the commencement of this Act in terms of an antenuptial contract by which community of property and community of proﬁt and loss are excluded; or

entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it was in force immediately before its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988,

may cause the provisions of Chapter I of this Act to apply in respect of their marriage by the execution and registration in a registry within two years after the commencement of this Act or, in the case of a marriage contemplated in subparagraph (ii) of this paragraph, within two years after the commencement of the said Marriage and Matrimonial Property Law Amendment Act, 1988, as the case may be, or such longer period, but not less than six months, determined by the Minister by notice in the Gazette, of a notarial contract to that effect.

(b) The provisions of Chapter I apply in such a case from the date of the conclusion of the marriage of the spouses or from the date of the execution of the notarial contract concerned, as the spouses may declare in that contract.

(c) For the purpose of proof of the net value of the respective estates of the spouses on the date on which the provisions of Chapter I so apply, they may declare that value either in the notarial contract concerned or in a statement as contemplated in section 6, and in the last-mentioned case the provisions of the said section 6 apply mutatis mutandis in respect of that statement.

(d) For the purposes of section 4 (1) the commencement of the marriage concerned is deemed to be the date contemplated in paragraph (b).

(e) The inclusion of an asset in a statement contemplated in section 6 does not serve as proof of any right of any person with regard to that asset or for the purpose of any release contemplated in section 21 (1) of the Insolvency Act, 1936 (Act No. 24 of 1936).

25.

(2) Notwithstanding anything to the contrary in any law or the common law contained, the spouses to a marriage entered into before the commencement of this Act and in respect of which the matrimonial property system was not governed by section 22 of the Black Administration Act, 1927 (Act No. 38 of 1927), may—

if they are married in community of property, cause the provisions of Chapters II and III of this Act to apply to their marriage; or

if they are married out of community of property and the wife is subject to the marital power of the husband, cause the provisions of Chapter II of this Act to apply to their marriage,

by the execution and registration in a registry within two years after the said commencement or such longer period, but not less than six months, determined by the Minister by notice in the Gazette, of a notarial contract to that effect, and in such a case those provisions apply from the date on which the contract concerned was so registered.

(3) Notwithstanding anything to the contrary in any law or the common law contained, the spouses to a marriage entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, and in respect of which the matrimonial property system was governed by section 22 of the Black Administration Act, 1927 (Act No. 38 of 1927), may—

if they are married in community of property, cause the provisions of Chapters II and III of this Act to apply to their marriage; or

if they are married out of community of property and the wife is subject to the marital power of the husband, cause the provisions of Chapter II of this Act to apply to their marriage,

by the execution and registration in a registry within two years after the said commencement or such longer period, but not less than six months, determined by the Minister by notice in the Gazette, of a notarial contract to that effect, and in such a case those provisions apply from the date on which the contract was so registered.

26. Sections 1 and 2 of the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), do not apply to marriages in respect of which the provisions of section 25 (2) or (3) of this Act have been applied or to marriages concluded after the commencement of this Act, other than marriages in respect of which the matrimonial property system was governed by section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), before the deletion thereof by the Marriage and Matrimonial Property Law Amendment Act, 1988.