FACULTY Faculty of Law

SUBJECT Family Law

SUBJECT CODE PFA 3532

TASK Assignment

DUE DATE 22 August 2019

TOTAL 100

STUDENT NAME Mishozi Madeleine Chikusi

STUDENT NUMBER 201707293

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Table of content

Introduction……………………………………………………………………1
Grounds in Namibia within which married persons may change their
marital regime…………………………………………………………………3
Negative aspect in change in marital regime………………………………5
Conclusion……………………………………………………………………..5

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Introduction

In general, all civil marriages in Namibia are automatically in community of property

unless the couple enters into an ante nuptial agreement which specifies a different
marital regime. An ante nuptial is a formal written agreement completed before the
marriage and filed in the Deeds registry. It is a rule that derives from the Roman-Dutch
common law that Namibia inherited on Independence. However, the Native
Administration Act 15 of 1928, which is still in force outlines a different rule for all Civil
marriages between natives’ north of the old Police Zone. These marriages are
automatically out of community of property, unless a declaration establishing another
property regime was made to the marriage officer before the marriage took place. 1

Parties that decide to get married will often enter into an ante nuptial agreement in
contemplation of marriage. However, some parties may already have been married in
community of property and at a later stage decide to change their marital contract and
enter into a postnuptial agreement, which is generally one in contemplation of
separation. The Matrimonial Property Act authorizes a husband and wife to apply
jointly to court for leave to change the matrimonial property system which applies to
their marriage.2

The grounds in Namibian law within which married persons may

change their marital property.

It is a general common law rule in Namibia that once community is excluded it cannot
be introduced and once introduced it cannot be excluded, nor can an ante-nuptial
contract be varied by a post nuptial agreement between spouses, even if confirmed
by the death of one of them. The rule was used in the leading South African case of
Edelstein v Edelstein, where Van Den Heever JA stated that, our law is clear on the
fact that once a particular proprietary matrimonial regime is established at the marriage
it may not be altered except by an order of Court in certain circumstances. In this event
the circumstances of this case were that there was a minor when she entered into the

1
Hinz, M. O. (1998). Family law in Namibia: The challenge of customary and constitutional law. The
changing family: Family forms and family law. Oxford: Hart, 139-152.
2
Matrimonial property act 88 of 1984

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ante nuptial contract, and she did not have the consent of her father to enter into the
ante nuptial contract. As a result, the Court declared that the ante nuptial contract was
void.3

According to the Matrimonial Property Act, a husband and wife may jointly apply to a
court for leave to change their matrimonial property system, including the marital
power, which applies to their marriage. The Court may also order that such
matrimonial property system shall no longer apply to their marriage and authorize them
to enter into a notarial contract by which their future matrimonial property system is
regulated on such conditions as the court may deem fit. Furthermore, it should be
noted that parties may not change their matrimonial system upon dissolution of
marriage, for example as what occurred in the case of Moses v Shambwila.4 The
parties were married in community of property and signed a declaration as required
by section 17 (6) of the Native Administrative Proclamation Act 15 of 1928. They
continued to conduct their marriage as such. The Plaintiff then issued a summons for
divorce and claimed that they were married out of community of property. The legal
question the court was faced with, was whether or not parties can change their
matrimonial property upon dissolution of marriage? Evidence pointed to the contrary.
The Court held that the marriage was in community of property and that parties are
not allowed to claim the opposite when the relationship is not successful.

In order for parties to change their matrimonial status there are requirements that must
be met. There are three major requirements that have to be met before a court will
allow such a change in marital regime. These include that there must be sound
reasons for the proposed change, for example in an event that parties wish to get
married out of community of property, the act requires them to enter into an ante
nuptial agreement. If parties do not indicate this then they would be automatically by
law be entered into an agreement whereby they are married in community of property.
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. The Act also 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

3
Edelstein v Edelstein 1952 (3) SA 1 (AD) at15H.
4
Moses v Shambwila NAHCNLD 91 2016

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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. 5

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 so 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.

Negative aspect of change in marital property

The drawback is that the application is expensive because both husband and wife
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. Parties must have solid grounds for wanting to switch to an ante
nuptial contract. Therefore, it’s not something you can do on a whim.

The Matrimonial Property Act 88 of 1984 provides that in section 21(1) that spouses
may apply jointly to the High Court for leave to amend their matrimonial property
regime if the following requirements are met. These requirements were also outlined
in the South African High Court case of Lourens et Uxor 1986 (2) SA 291 (C)6.

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 affected negatively by the change.

5
Dugard, J. (1971). The Opinion on South-West Africa (Namibia): The Teleologists Triumph. S.
African LJ, 88, 423.
6
Lourens et Uxor 1986 (2) SA 291 (C).

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When the Court is satisfied that the requirements have been met, only then will it order
that the existing matrimonial property regime no longer applies to the marriage and
authorise the couple to enter into an anti-nuptial contract which their future matrimonial
property will be regulated.

In addition, the application should 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 van consider whether the application has been brought in the appropriate
forum and whether or not additional notice of the application should be given.

In conclusion, it is possible in limited circumstances in our law to change a marital

property regime by means of a postnuptial agreement according to section 88 of the
Deeds Registries Act 47 of 1937. The relevant provision states that the Court may
subject to such conditions as it may deem desirable authorise postnuptial execution
of notarial contract having of an ante nuptial contract and if the terms were agreed
upon between the spouses before the marriage and may order the registration within
a specified period of any contract so executed.

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References

Books

Dugard, J. (1971). The Opinion on South-West Africa (Namibia): The Teleologists

Triumph. S. African LJ, 88, 423.

Hinz, M. O. (1998). Family law in Namibia: The challenge of customary and

constitutional law. The changing family: Family forms and family law. Oxford: Hart,
139-152

Caselaw

Edelstein v Edelstein 1952 (3) SA 1 (AD) at15H.

Lourens et Uxor 1986 (2) SA 291 (C).

Moses v Shambwila NAHCNLD 91 2016

Statutes

Deeds Registries Act 47 of 1937

Matrimonial property act 88 of 1984

Native Administration Act 15 of 1928