HOW TO CHANGE YOUR MARITAL STATUS TO ANOTHER FORM OF MARRIAGE CONTRACT

Maritial status A3_bSection 21(1) of the Matrimonial Property Act No 88 of 1984 provides that a husband and wife may apply jointly to court for leave to change the matrimonial property system which applies to their marriage.

Requirements

The decision in Lourens et Uxor 1986(2) SA 291 (C) sets out guidelines that the courts follow with regard to applications in terms of section 21(1) of the Matrimonial Property Act.

In order for the parties to change their matrimonial property system, the Act mentions the following requirements:

  • There must be sound reasons for the proposed change.

According to South African Law, the parties who wish to become married out of community of property must enter into an antenuptial contract prior to the marriage ceremony being concluded. If they fail to do so they are automatically married in community of property. Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.

  • Sufficient notice of the proposed change must be given to all creditors of the spouses.

The Act requires that notice of the parties’ intention to change their matrimonial property regime 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 the known creditors of the spouses. Moreover, the draft Notarial Contract that the parties propose to register must be annexed to their application.

  • The court must be satisfied that no other person will be prejudiced by the proposed change.

The court must be satisfied that the rights of creditors of the parties must be preserved in the proposed contract. The application must therefore 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 such change. Once the court is satisfied that the requirements have been met it may order that the existing matrimonial property system may no longer apply to their marriage, and authorise the parties to enter into a Notarial Contract by which their future matrimonial property system is to be regulated on such conditions as the court may deem fit.

It should also be stated whether or not either of the applicants has been sequestrated in the past and, if so, when, and under what circumstances. The case number of any rehabilitation application must be furnished.

It further needs to 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.

Care must be taken to fully motivate 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.

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 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. Ordinarily the application should be brought in the Court in whose area of jurisdiction the parties are domiciled and ordinarily resident.

The negative side

Unfortunately, the application is expensive in that both spouses have to apply to the High Court on notice to the Registrar of Deeds and all known creditors, to be granted leave to sign a Notarial Contract having the effect of a postnuptial contract which, after registration, will regulate the new matrimonial property system.

It would thus be cheapest and best to approach an attorney or notary prior to the marriage ceremony being concluded to draft a proper antenuptial contract regulating the matrimonial property of the parties involved, without any confusion.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

HOW IMPORTANT IS IT TO READ LEGAL PLEADINGS AND/OR NOTICES?

Reading leagal pleadings A4_bOften people only become aware of judgments reflecting on their credit records when trying to apply for loans, cell phone contracts, etc.

However, what many of them do not know, is that it is most likely due to their own negligence that they have these judgments against them.

A summons is a document that informs a defendant that he or she is being sued and asserts the jurisdiction of the court to hear and determine the case. A summons can be served for many reasons which include divorce proceedings, traffic fines, outstanding fees, etc.

A simple summons sets out very briefly the details of the case. A combined summons does not set out the details or reasons as to why the action is being instituted, and such details can be found in the particulars of claim. It is important to take notice of the fine print on the summons. This is where you will find the information regarding when and where you should file your Notice of Intention to Defend, should you wish to defend the matter. An attorney usually drafts the notice and files it at court, however, it is not uncommon for people to defend such actions themselves. If you wish to defend the matter yourself it is important to serve it on the opposing attorneys (these details are on the summons) and file it at court.

With regards to any normal summons the time period to file the Notice of Intention to Defend is 10 (ten) days and 20 (twenty) days to file the opposing papers. If the defendant resides or is located in a 160 km radius outside the court, the defendant then has 21 (twenty one) days to file their Notice of Intention to Defend and 20 (twenty) days to file their opposing papers.

Once the ten or twenty days have passed and no Notice of Intention to Defend has been filed, the attorneys will immediately apply for Default Judgment. This may result in a judgment against your name. Once a Judge/Magistrate has granted Default Judgment, a Warrant of Execution can be issued in order to attach property and/or money for the amount as stated on the summons. If the Sheriff finds that there is no property to attach in order to obtain the money, the attorneys will go ahead with a Section 65A (1) Application. This Application requires the debtor to present their income and expenses to the court and provide an amount which can be paid off monthly in order to settle their debt.

A judgment will only be removed from your record once a rescission order is granted and/or proof is provided that the amount cited on the summons has been paid in full. If the amount has been paid in full, you can contact Transunion directly and get the judgment removed for free once proof of payment has been sent.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

RIGHTS CREATED BY HOMEOWNERS’ ASSOCIATION CONSTITUTIONS

A2_bMany residential estates are governed by homeowners’ associations, which have constitutions requiring anyone owning property in that particular estate to belong to the association.

The association owns communal facilities and operates the estate’s infrastructure, including roads, water, sanitation, telecommunications networks and security services. All these are funded by monthly levies, recovered from residents.

The constitution of such associations include a clause stipulating that no member can transfer his or her property unless the homeowners’ association has certified that the member has fulfilled all financial obligations to the association.  These clauses are inserted to prevent any post-transfer problems in recovering amounts owed by residents.

A complication arises if a resident is sequestrated (or wound up, in the case of a corporate entity owning property in the estate).  The trustee or liquidator is obliged to sell the assets, and utilise the proceeds to the benefit of creditors.  Can the homeowners’ association prevent transfer, in such circumstances, if the amounts due to it are not paid?  This was the problem recently considered by the Supreme Court of Appeal in Willow Waters Homeowners v Koka NO & Others 2015 (5) SA 304 (SCA).  The Court approached the issue by considering whether the embargo on transfer of property, contained in the homeowners’ association constitution, constituted a real right as opposed to a personal right.  Broadly speaking, a real right prevails against the whole world and is enjoyed in respect of specific property, whereas a personal right is relative in the sense that it is only enforceable against a particular person, namely the other party to the obligation.  (Van der Merwe, “Sakereg”, pp 60 – 61).

In the Willow Waters Homeowners matter, the Court pointed out that, to determine whether a right or condition in respect of land is a real right, two requirements must be met, namely:

(a) The intention of the party who creates the right must be to bind not only the present owners but also successors in title; and

(b) The nature of the right or condition must be such that it restricts the exercise of ownership in the property saddled with such right.

The Court held that a clause requiring payment to the homeowners’ association of all monies due to it before transfer is intended to create a general security for the payment of a debt by binding successive owners in the township.  By doing so it restricts the exercise of rights of ownership by limiting an owner’s right to freely dispose of the property.  The provision therefore met both of the aforegoing requirements, and is qualified as a real right.  The court rules that the homeowners’ association was entitled to enforce this right against any party, including the trustee of an insolvent estate, where an owner of property in the estate had been sequestrated.

The judgment clarifies an important legal question.  Homeowners’ associations exercise an embargo on the transfer of property in a residential estate, unless and until all monies owed by the transferor to the homeowners’ association have been paid.

Compiled by Kinney Oosthuizen

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

CASUAL DAY FOR A CAUSE

A1BSchnetler’s supported Casual Day on Friday, 04 September by purchasing Casual Day stickers and dressing up according to the theme “Spring into Action”.

The aim of Casual Day is to raise funds as well as awareness of persons with disabilities.We decided to combine Casual Day with Heritage Day and held a braai for the firm on the balcony of our kitchen in the afternoon. Much fun was had by all!

The next charity project that Schnetler’s will be taking part in, in October is the “Santa Shoebox Project”. We hope that you too support this worthy cause and pledge your own box in order to realise this charity’s goal of having 100 000 boxes pledged. This can be done online at www.santashoebox.co.za.

Compiled by Laura Ames

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)