Introduction
Marriage in South African law is not only a union of two people but also a legal relationship with specific financial consequences. The matrimonial property system chosen by spouses determines how their assets, debts, and financial responsibilities are managed during the marriage and upon its dissolution. The three primary marital regimes recognised in South Africa are:
- Marriage in community of property,
- Marriage out of community of property without accrual, and
- Marriage out of community of property with accrual.
Marriage in community of property
If partners decide to get married without signing an ante-nuptial contract before the marriage, their union automatically falls in community of property. This is the default regime under South African law. In this system, the spouses’ separate estates merge into one joint estate. All assets and liabilities acquired before and during the marriage belong equally to both spouses. Both parties share in the profits and losses of the joint estate. Importantly, they are jointly responsible for each other’s debts, even if incurred by one spouse alone before or after their marriage.
Marriage out of community of property without accrual
Where partners wish to keep their estates entirely separate, they must execute an ante-nuptial contract (ANC) before entering into the marriage, specifically excluding community of property and accrual. This means that each spouse will remain solely responsible for their own assets, debts, and income, both during and before the marriage.
This system offers maximum financial independence, allowing each spouse to manage their affairs freely without the risk of being affected by the other’s financial decisions. However, it provides no sharing of growth or wealth, meaning that upon divorce or death, each spouse retains only what they own.
Marriage out of community of property with accrual
The accrual system, introduced by the Matrimonial Property Act 88 of 1984, seeks to balance independence and fairness. Spouses keep their estates separate during the marriage, but upon dissolution (by divorce or death), the increase in value (accrual) of each estate is compared. The spouse with the smaller accrual is entitled to half of the difference between the two estates.
This system makes provision for both financial and non-financial contributions to the marriage, recognising the shared effort in building wealth. The accrual system must be expressly included in the ante-nuptial contract.
Conclusion
Choosing the right marital regime is a vital decision that affects your financial rights and responsibilities throughout your marriage. South African law offers flexible options to balance fairness, independence, and security, but the choice must be made before entering into a marriage with your partner.
At Malan Lourens Viljoen Inc we specialise in family law and ante-nuptial contract drafting, ensuring that your marriage is founded on clear legal and financial certainty. Our experienced attorneys can advise you on the most suitable marital regime for your personal and financial circumstances.
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.