Huweliksvoorwaardekontrakte en die effek van die verandering van die huweliksgoederebedeling na huweliksluiting

Abstract

Parties in South Africa have the choice to choose the matrimonial property regime which would be convenient for them when they conclude a marriage. When the parties want to marry out of community of property, they must enter into a legal contract, namely an antenuptial contract, to give effect to this matrimonial property regime. There are several consequences for each of the matrimonial property regimes and it may happen that the parties' economic position changes and they thus want to change the matrimonial property regime that applies to them. Chapters 3 to 5 discuss the antenuptial contract as well as the change of matrimonial property regime, whether formal or informal, and the effect of the change on the parties inter partes as well as in relation to third parties. Where an antenuptial contract is not registered in terms of sections 86 and 87 of the Deeds Registries Act, the antenuptial contract will only be enforceable as discussed in the Schmitz and KS v MS-cases. Previously, in terms of common law, parties could not change the matrimonial property regime after the conclusion of the marriage, but section 21 (1) of the Matrimonial Property Act changed this position. The parties can now apply to the court jointly to change the matrimonial property regime. In Ex Parte Krös it is said that this change can occur retroactively, but in Ex Parte Oosthuizen and Ex Parte Burger it can be seen that this position will only apply to the future matrimonial property regimes of the parties and will not be effective retrospectively. The parties also attempted to change the matrimonial property regime without using the mechanisms in the Matrimonial Property Act. The first method, as in the Honey-case, was where a notarial contract to change the matrimonial property regime was executed but not registered in the Deeds Office. The second form of the informal amendment of the matrimonial property regime is to establish a universal partnership as in JW v CW and RD v TD. The courts found that, where there is an attempt to change the matrimonial property regime informally, it will remain unenforceable. The parties are therefore obliged to use the statutory mechanisms where they want to change the matrimonial property regime. The parties may conclude a universal partnership, where they do not try to change their matrimonial property regime.