The High Court will only grant a Section 21 application if it is satisfied that three core conditions have been met. These are the "pillars" of a successful application:
- Sound Reasons:The couple must provide convincing, valid reasons for the proposed change. The Court wants to ensure the change is not frivolous or being done to hide assets. Common "sound reasons" include protecting assets from a new business venture, correcting a misunderstanding about the legal consequences of marriage, or facilitating better estate planning.
- Sufficient Notice:The couple must prove they have given adequate notice of the intended change to the Registrar of Deeds and to all known creditors. Transparency is non-negotiable.
- No Prejudice to Third Parties:This is the most critical requirement. The Court must be certain that no other person—including banks, creditors, or even children of the marriage—will be financially disadvantaged by the change. If a couple is technically insolvent (liabilities exceed assets), the application will likely fail.
2. Procedural Formalities & Notification
To ensure transparency, the Act dictates a strict notification process. The application is not a private matter; it must be advertised to the public.
- Joint Application: The application must be brought jointly by both spouses. One spouse cannot force the change upon the other.
- Public Advertisements: A notice of your intention to apply must be published in the Government Gazette and one local newspaper at least two weeks before the court hearing.
- Notification to Creditors: You must send a formal notice via registered post to every known creditor (banks, retail accounts, bondholders) at least two weeks before the hearing. Proof of these registered letters must be included in the court file.
- Registrar of Deeds Report: A copy of your application must be served on the Registrar of Deeds. The Registrar will then issue a formal report to the High Court confirming whether the proposed contract is registrable.
3. Full Financial Disclosure
The High Court requires "full and frank" disclosure of the couple’s financial status to assess if creditors are at risk. Your attorney will draft an affidavit that includes:
- Assets & Liabilities: A detailed schedule of everything you own and everything you owe.
- Insolvency Status: A sworn statement confirming whether either spouse has ever been sequestrated (or rehabilitated).
- Pending Litigation: You must disclose if any debt collection or legal proceedings are currently pending against you.
- Draft Contract: A draft of the proposed Postnuptial Contract must be annexed to the application so the Judge can inspect the new terms.
4. Finalisation: Execution & Registration
Getting the Court Order is a major victory, but it is not the final step. Once the High Court grants the order, you must legally finalize the change:
- Execute the Contract: You must appear before a Notary Public to sign the official Postnuptial Contract. This must be done exactly as authorized by the Court.
- Register at the Deeds Office: The signed contract must be lodged and registered at the Deeds Registry, usually within a specific period ordered by the Court (typically three months).
Crucial Note: The change in your marital regime only becomes effective against third parties (the world at large) once this registration is complete.
Need Expert Assistance?
Navigating these requirements requires a specialist touch. A single procedural error—such as missing a creditor or advertising in the wrong newspaper—can cause the High Court to dismiss your application. At Louwrens Koen Attorneys, we handle every step of the Section 21 process, from drafting the affidavit to placing the advertisements and final registration.
Contact Us
- Tel: 087 0010 733
- Email: info@louwrenskoen.co.za