key to the study guide - Name

Requirements
Procedural requirements
Retroactive change
of matrimonial
property system
Meaning of ``retroactive''
The application for variation will not be granted by the court unless all the
statutory requirements are met. They are that
(1) there must be sound reasons for the proposed change
(2) sufficient notice of the proposed change must be given to all the
creditors of the spouses
(3) no other person will be prejudiced by the proposed change
It is also important to note that one spouse cannot, on his or her own,
apply for variation of the matrimonial property system Ð both spouses
must apply together; in other words, they must apply jointly. They must
also attach a draft notarial contract to their application in which they set
out the proposed system.
After setting out the requirements for a successful application in terms of
section 21(1), your textbook discusses one requirement, namely that of
sound reasons, in detail on pages 109±110. You must study that discussion
so that you can explain what the phrase ``sound reasons'' means and know in
what circumstances the courts have found sound reasons to be present. From
the cases that have come before our courts it appears that the courts readily
find that the requirement of sound reasons has been met.
Your textbook also discusses the procedure which must be followed in a
section 21(1) application. This discussion appears under the heading
``8.2.3 Procedural requirements'' on page 110. You only have to read
that discussion.
On pages 110±111 under the heading ``8.2.4 Retroactive alteration of
the matrimonial property system'' of your textbook it is explained that
it is not clear whether the court can authorise an alteration of the
matrimonial property system with retroactive effect.
If something is changed with retroactive effect it means that the change
applies in respect of the past as well.
ACTIVITY
Explain very briefly what ``retroactive'' means in the case of an application
in terms of section 21(1).
FEEDBACK
In the case of an application in terms of section 21(1), it means that the
matrimonial property system is changed, not as from the date of the court
order, but as from before that date Ð normally as from the date of the
marriage.
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