In many cases, spouses married in community of property fall into dire financial constraints due to the mismanagement of debt of a spouse or the risky financial implications attached to certain entrepreneurial projects a certain spouse may be engaged in.

The rule relating to community of property is that all debt incurred on a spouse is also then imputed onto the other spouse. Further, all contracts involving loans i.e., vehicle financing, mortgage loans, notarial bonds etc. need the signature (consent) of the other spouse which can be cumbersome. Spouses already married in community of property tend to fall into these financial hardships due to the financial risky behaviour of the one spouse. In terms of
Section 21 of the Matrimonial Property Act , it mentions that spouses may apply jointly to the High Court for consent to vary the matrimonial property system which applies to their marriage.

An application of this nature is deemed an ex parte application which is an application based on the interests of one party only, therefore no formal opposition.

Attached to the application would be a draft of the ante nuptial contract of which the parties would prefer to enter into (either out of community of property with an accrual or out of community of property without an accrual).

Unfortunately, financial complications in marriages are one of the main reasons married couples file for divorce. Where a spouse leaves the safety of permanent employment to venture into the entrepreneurial space, discussions on the change of their marital regime (if married in community of property) should be entertained to protect the other spouse from incurring the financial burden. Section 21 of the Matrimonial Property Act is a remedy to couples in these situations.

Written by Ntuthuko Mgiba (Attorney)