Changing Your Matrimonial Regime to Out of Community of Property

The Matrimonial Property Act provides that a husband and wife may apply jointly to the High Court for leave
to amend their matrimonial property regime if the following requirements are met:

 There must be sound reasons for the proposed change.

 Notice of the intention to change must be given to the Registrar of Deeds, must be published in the
Government Gazette and two local newspapers at least two weeks prior to the date on which the
application will be heard, and must be given by certified post to all known creditors.
 The draft notarial contract, which the parties propose to register, must also be annexed to their
application.
 No other person will be prejudiced by the proposed change.
 The rights of creditors must be preserved in the proposed contract.
 The application must contain sufficient information about the parties’ assets and liabilities to enable
the court to ascertain whether or not there are sound reasons for the proposed change and whether
or not any particular person will be prejudiced by the change.

When the court is satisfied that the requirements have been met, it will order that the existing matrimonial
property regime no longer applies to the marriage and authorise the couple to enter into an ANC by which
their future matrimonial property regime will be regulated.

Note that such an application is expensive. Section 21(1) of the Matrimonial Property Act 88 of 1984 provides
that spouses may apply jointly to court for consent to vary the matrimonial property system which applies to
their marriage.

Requirements

The decision of Lourens et Uxor 1986 (2) SA 291 (C) confirm the guiding principles that the court follow with
regard to applications in terms of section 21(1) of the Matrimonial Property Act No. 88 of 1984.

In order for the parties to change their matrimonial property system, the act mentions the following
requirements: The case lays out the following guidelines:

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 1. Notice of the applications must be given to the Registrar of Deeds in terms of s 97 (1) of the Deeds
Registries Act 47 of 1937.
2. The draft notarial contract which it is proposed to register must be annexed to the application.
3. Notice of intention to make the application must also be published in the Government Gazette and
one English and one Afrikaans newspaper at least two weeks before the date on which the application
will be heard.
4. The date upon which the application will be heard must be specified in the published notice, setting
out what steps an objector to the order sought must take and where the application and draft
contract can be inspected.
5. In addition, at least two weeks' prior notice of the application must be given by certified post to all
creditors, whether actual or contingent. A list of such creditors, verified by affidavit, shall be included
in the application and proof that such notice has been given to them must be provided by an affidavit
to which are annexed the relevant certificates of posting.
6. Sufficient information regarding the assets and liabilities of the couple concerned must be set out in
the application to enable the Court to judge whether or not there are sound reasons for the proposed
change and whether or not any other person will be prejudiced by the proposed change.
7. It should also be stated whether or not either of the applicants has been sequestrated in the past and,
if so, when, and in what circumstances. The case number of any rehabilitation application must be
furnished.
8. It should also be stated whether or not there are any pending legal proceedings in which any creditor
is seeking to recover payment of any alleged debt due by the couple or either of them.
9. Care must be taken to motivate fully the proposed change in the existing matrimonial property
system. Applicants must explain why no other person will be prejudiced by the proposed change. In
any event, the order sought, and the contract which it is proposed to register, shall contain a
provision which preserves the rights of pre-existing creditors.
10. The application must disclose where the parties are domiciled and, if they are not resident there
when the application is made, where they are resident. If there has been a recent change in domicile
or residence it should be disclosed so that the

The court where the application is brought (the High Court) must be satisfied that no other person will be
prejudiced by the future change. The court must be satisfied that the rights of creditors of the parties must be
preserved in the planned contract so the application must contain adequate information about the parties’
assets and liabilities to allow the court to determine whether or not there are good reasons for the intended
change and whether or not any other person will be prejudiced by such amendment.

If the court is content that the requirements have been met, it can order that the existing matrimonial
property system may no longer apply to the marriage and approve that the parties may enter into a Notarial

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contract by which their future matrimonial property regime will be regulated.

The application must also reveal where the parties are domiciled and, if they are not resident there when the
application is made, where they are resident. If there has been a recent change in domicile or residence it
should be disclosed so that the Court can consider whether the application has been brought in the
appropriate forum and/or whether or not additional notice of the application should be given.

The Grounds for Divorce in South Africa

A marriage may be dissolved by a court on the following grounds:

 the irretrievable breakdown of the marriage; or

 the mental illness, or the continuous unconsciousness, of a party to the marriage.

Irretrievable breakdown

A court may grant a decree of divorce on the grounds of the irretrievable breakdown of the marriage if the court
is satisfied that the marriage relationship between the parties to the marriage has reached such a state of
disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between
them.

Divorce Act 70 of 1979 lays down the circumstances that a court may accept as evidence of the irretrievable
breakdown of a marriage:

 The parties have not lived together as husband and wife for a continued period of at least one year
immediately prior to the date issuing summons for divorce.
 The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage
relationship.
 The defendant was declared a habitual criminal and is undergoing imprisonment.

The court still has discretion not to grant a divorce order, and may postpone the proceedings or dismiss the
claim if it appears to the court that there is a reasonable possibility that the parties may reconcile through
counselling. If reconciliation is unsuccessful after a few months, the parties may proceed with the same

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summons. The summons will usually contain the averment that further counselling and/or treatment will not
lead to any reconciliation. A court must, therefore, be satisfied that the marriage is really broken down and that
there is no possibility of the continuation of a normal marriage.

Where the parties reconcile and live together again after the summons was issued and served, it does not
necessarily end the divorce proceedings. If, however, the reconciliation is unsuccessful after a few months, the
parties may proceed with the same summons. It is extremely important to make sure that the summons is
withdrawn formally if you do decide to reconcile. Withdrawal of the summons is formally affected when the
plaintiff serves a document referred to as a notice of withdrawal of the summons on the defendant or his/her
attorney. If this is not done, a divorce order may be obtained by default without the defendant being aware of
it. If a divorce is obtained in this manner, the aggrieved party may approach the court to set aside the order.

Since the present law on divorce is no longer based on the principle of fault, defences like insanity or the
plaintiff’s own adultery are no longer valid defences. Therefore, if a divorce is instituted on account of an
irretrievable breakdown, there is in fact no defence to prevent the divorce from proceeding. But if the court
finds that there is a reasonable possibility of reconciliation, it may postpone the proceedings in order that the
parties attempt reconciliation; this, however, is not a defence, but merely amounts to a postponement.

Mental illness or continuous unconsciousness

Mental illness

A court may grant a decree of divorce on the grounds of the mental illness of the defendant if the court is
satisfied that the defendant:

 has been admitted as a patient to an institution in terms of the reception order;

 is being detained as a state patient at an institution or other place specified by the Minister of
Correctional Services; or
 is being detained as a mentally ill convicted prisoner at an institution.

A divorce order may also be granted if the defendant has, for a continuous period of at least two years
immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient,
state patient or mentally ill prisoner; and if the court has heard evidence from at least two psychiatrists, one of
whom must have been appointed by the court, that the defendant is mentally ill and that there is no reasonable
prospect that he/she will be cured of his/her mental illness.

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Continuous unconsciousness

A court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in
a state of continuous unconsciousness, if it is satisfied that:

 the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately
prior to the institution of the divorce action; and
 after having heard evidence from at least two medical practitioners, one of whom must be a neurologist
or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will
regain consciousness.

The divorce process in South Africa is relatively straightforward, yet the financial and emotional consequences
can be profound, especially since most divorces are normally lodged in the High Court, where the costs to litigate
are extremely high. The other harsh reality is that the High Courts in South Africa have overly burdened court
rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is
contested. The backlog in cases was somewhat lessened when the Regional Courts Amendment Act came into
effect in 2010 to amend the Magistrates’ Courts Act, 1944, so as to allow regional divisions of the magistrates’
courts to also deal with divorce cases.

In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of
the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of
divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable
breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore,
a marriage can be dissolved even if one of the parties does not wish to get divorced.

Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be
dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other
spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the
relationship and which matrimonial property regime governs the marriage. The summons must make provision
for the division of the estate, either stating that the parties have entered into a prior agreement or asking the
court to divide the joint estate or enforce the provisions of the Antenuptial Contract. Parties must also set out
what the arrangements are with regards to any children born or adopted during the marriage.

Parental Rights

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When co-holders experience difficulties in exercising their responsibilities and rights, they must agree on a
parenting plan to regulate the exercise of their responsibilities and rights as a prerequisite before approaching
the court. They must first seek the assistance of the family advocate, social worker or psychologist; alternatively,
they must go for mediation facilitated by a social worker or other suitably qualified person.

The Act discourages co-holders of parental responsibilities and rights from approaching the court as a first resort
when they experience difficulties in exercising those responsibilities and rights. The High Court has expressed its
dissatisfaction with co-holders of responsibilities and rights who do not follow a conciliatory approach through
cost orders. Seeking such assistance or mediation is therefore a prerequisite for being allowed to approach the
court.

Where the litigious process is win-lose, mediation is focused on achieving win-win. It is not a matter of ‘Can my
lawyer outsmart your lawyer?’; it is about sitting down and getting rid of all the angst and aggression. After
agreeing to a plan, parents can choose to lodge a signed plan with the Office of the Family Advocate or have it
made into an order of the court. Once a plan is made an order of court, breach thereof may lead to contempt of
court. For some parents, especially those involved in high conflict separations and in cases of domestic violence,
a higher level of accountability is required and so lodging with the court is an absolute necessity. Most parents,
however, will draft a plan, sign it and just abide by it without ever referring to it again.

The parties to the plan may amend or terminate the plan on application. If the plan was registered at the family
advocate, they must apply directly to the Office of the Family Advocate. Only three categories of persons may
approach the court for an amendment or termination:

 the co-holders of parental responsibilities and rights;

 the child; or
 a person acting in the child’s interests.

What is a parenting plan?

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The Children’s Act offers parenting plans as a method to assist parents with how to exercise their parental
responsibilities and rights after separation or divorce. Parenting plans are a relatively new concept in South
Africa, but are already popular in countries such as the United States and Australia, and in certain European
countries. A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must
comply with the best interests of the child principle as set out in the Act, and must be in terms of a prescribed
form and include the following issues:

 where and with whom the child is to live;

 the maintenance of the child;
 contact between the child and any other person; and
 the schooling and religious upbringing of the child.

A parenting plan is essentially a roadmap directing how children will be raised after separation or divorce. As a
co-parenting solution, it is a written agreement drafted by both parents with the help of a neutral third party,
usually a social worker, psychologist or family lawyer, acting as a mediator. The Act requires that children also
be consulted when such a plan is drafted so that they have an opportunity to give their input on who they wish
to live with, how much time they wish to spend with each parent and where they wish to spend special occasions,
as well as any other areas in which they feel they should have a say. The age of the child will determine the level
of input allowed/required. Once the plan is finalised, it is signed by both parents. Parenting plans need to be
continually reviewed, as children’s developmental needs change over time. Reviews can range from every six
months to every two years, depending on the child’s age.

During the drafting phase, the mediator will explore all aspects of family life, focusing on what is in the best
interests of the child, and, together with the parents, will determine things such as how often and when each
parent will see the child, which home will become the primary residence, which religion the child will be brought
up in, which schools he/she will attend and where the child will spend holidays. In addition, the plan may specify
how parents will communicate with each other and the child, and how new partners will be introduced.
Typically, a parenting plan may state that the parents will encourage the child to phone the other parent each
day, or that the parents agree not to speak negatively about each other in front of the child.

The parenting plan will also have a dispute resolution section, appointing a mediator and/or facilitator to attend
to any disputes that may arise between the parents and to intervene in circumstances where one parent
breaches the plan, for example frustrating contact between the other parent and the child.

Developing a parenting plan is an essential part of the divorce process. Although parenting plans can be drawn
up at any stage in a separation or divorce, it is advisable that matters relating to children be sorted out sooner

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rather than later. It is important for children to have plenty of access to both parents. Where both parents have
been actively involved in the child’s life before the divorce, a more equal division of parenting time can occur.
In situations where one parent has done the majority of the child care, that parent should continue to be the
primary caregiver until the child has time to adapt to spending more time with the secondary parent. In these
situations, it may be feasible over time for the child to spend an equal amount of time with each parent. Keep
in mind that the younger children are, the harder it is for them to be away from either parent, particularly a
primary parent, for long periods of time. Sometimes shorter, more frequent exchanges are helpful. As children
grow older, they can tolerate longer separations. Younger children will often tolerate a more lengthy stay away
from a parent if they have siblings with them. As children reach the teenage years, they are much more capable
of 50 per cent parenting splits. This will of course have to be considered with input from the child and with due
regard to the child’s schooling, participation in sport and extra-mural activities and religious or moral
upbringing. Having more than one home base is not always in the best interests of the child.

Some parents use the week on/week off principle, in which the child stays with one parent one week and then
with the other parent the following week. The downside is the long separation from each parent. Children’s
sense of time is quite different from adults, and a week might be too long in some cases. Another popular plan
is the 5-2-2-5, where one parent has the child on Mondays and Tuesdays, the other parent has the child on
Wednesdays and Thursdays, and Fridays, Saturdays and Sundays are alternated between the two. This plan has
consistency, but more transitions between households. It does, however, keep both parents involved on a
weekly, if not daily, basis.

There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a
variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole
family. Remember that parents can still participate in their children’s lives even when they are living elsewhere
or does not have frequent or equal contact with them.

Parenting plans should minimise loss and maximise relationships for children, and both parents should realise
that they are more important to their children than alternative care providers. Ultimately, the role of parents is
to cooperate and to provide as many opportunities for their children as possible.

The signs of an abusive relationship

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When you’re in a broken family and your role model is a violent male, boys grow up believing that’s the way
they’re supposed to act. And girls think that’s an accepted way men will treat them.’ ~ Jim Costa, US
Representative for California’s 20th congressional district

South Africa has one of the highest incidences of domestic violence in the world. And, sadly, domestic violence
is the most common and widespread human rights abuse in South Africa. Every day, women are murdered,
physically and sexually assaulted, threatened and humiliated by their partners, within their own homes.

Your thoughts and feelings

Do you:

 feel afraid of your partner/spouse most of the time?

 avoid certain topics out of fear of angering your partner/spouse?
 feel that you can’t do anything right for your partner/spouse?
 believe that you deserve to be hurt or abused?
 wonder at times that you are the one who is crazy?
 feel emotionally numb or helpless?

Your partner/spouse’s violent behaviour or threats

Does your partner/spouse:

 have a bad and unpredictable temper?

 hurt you, or threaten to hurt or kill you?
 threaten to take your children away or harm them?
 threaten to commit suicide if you leave?
 force you to have sex?
 destroy your belongings?

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