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In this guide
By Onah Attorneys Inc • Updated July 2026 • Legal information, not a substitute for advice on your specific matter.
Married without an ANC and now building a business, facing risk, or simply wiser? You are not locked in. Section 21 of the Matrimonial Property Act lets spouses jointly apply to the High Court to change their matrimonial regime — usually from in community of property to out of community with accrual. It is routine, but procedural: creditors must be protected, notice must be published, and the court must be satisfied. Here is the whole process.
Who applies and why
Both spouses, jointly — this is a consensual re-contracting, not a dispute. Common triggers: one spouse starting a business or professional practice (creditor exposure), signing sureties, estate planning, or the simple realisation that a joint estate no longer fits. The application cannot be used to strip assets from existing creditors — that’s the entire architecture of the safeguards.
The three statutory requirements
The court must be satisfied that: (1) sound reasons exist for the change (risk protection and estate planning qualify comfortably); (2) sufficient NOTICE of the proposed change has been given to all creditors — by registered post to known creditors and publication in the Government Gazette and a newspaper; and (3) no other person will be prejudiced — existing creditors’ rights are expressly preserved in the order.
The proposed new contract
The application annexes the draft notarial contract that will govern — typically out of community with accrual, with commencement values declared honestly. The accrual starting point matters enormously: values declared now set the baseline for any future divorce arithmetic. This is estate planning; draft it like it.
Process and timeline
Notarial drafting → founding affidavits (both spouses: assets, liabilities, reasons) → creditor notices and publication → High Court motion (usually unopposed, no personal appearance needed in most divisions) → order authorising the change → notarial execution and Deeds Office registration within the ordered window. End-to-end: typically 3–5 months, publication timing being the pacer.
Costs and whether it’s worth it
Meaningfully more than the ANC would have cost before the wedding — court application, publication, notary and registration. Against it: one spouse’s insolvency taking the family home, or a joint estate’s exposure to business creditors. For entrepreneur households married in community, the arithmetic almost always favours the change — before the risk matures, not after.
What it cannot do
It cannot defeat existing creditors (their rights survive by statute), cannot be done unilaterally, and cannot rewrite history — assets already in the joint estate are dealt with by the new contract’s division going forward. And timing matters: courts scrutinise applications launched with sequestration on the horizon. Change regimes in calm weather.
Frequently asked questions
Can we switch from in community of property to ANC after marriage?
Yes — jointly, via a Section 21 High Court application with creditor notice and publication. It is granted routinely where the requirements are met.
How long does a Section 21 application take?
Typically 3–5 months including Gazette publication and Deeds Office registration. Unopposed applications usually proceed without personal court appearance.
Does the change protect us from existing debts?
No — existing creditors’ rights are preserved by the order. Protection runs forward against future creditors, which is why acting early matters.
What does it cost?
Multiples of a pre-marriage ANC: court application, publication, notarial and registration fees. We quote fixed once we’ve seen the estate — and the number is small next to one business failure in community of property.
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