Choosing ‘Marriage Out of Community of Property Without Accrual’ as your marital regime in South Africa is crucial for ensuring financial independence between spouses.
This arrangement, distinct from the default ‘In Community of Property,’ requires signing and registering an Antenuptial Contract before marriage, effectively separating each spouse’s assets and liabilities.
When you plan to marry in South Africa, it is crucial to consider the different marital regimes.
If you do not sign an Antenuptial Agreement, your marriage relationship will automatically be In Community of Property – the default martial regime in South Africa.
A Marriage Out of Community of Property Without Accrual becomes effective when spouses sign and register their Antenuptial Contract before marrying. In this regime, each spouse independently owns and manages their estate, epitomising the principle “What’s mine is mine, and what’s yours is yours,” covering all assets and liabilities.
This arrangement is ideal for individuals seeking complete financial independence from their spouse.
Sarah and John chose to marry out of community of property without the accrual to maintain independence in their financial affairs. Sarah, an entrepreneur, aimed to protect her business assets, while John, a freelancer, sought financial flexibility.
After consulting a lawyer and drafting an antenuptial contract, they understood the regime’s impact on their finances.
When Sarah’s business later faced issues, John’s assets remained unaffected, highlighting this regime’s value.
Importantly, anything they individually create or acquire, like Sarah’s inventions or John’s software, remains solely theirs, ensuring that their professional and personal assets are safeguarded and separate, underlining the autonomy this marital contract provides.
If Sarah and John were to divorce under their chosen regime, the main downside would be that neither would have a claim to the other’s assets accrued during the marriage.
This could be particularly disadvantageous for the spouse who contributed less financially, as they would not benefit from the marital growth and could potentially face financial instability post-divorce.
The main advantage of this marital system is that each spouse ‘owns’ and manages their own estate. Each spouse is responsible for their debt, and their assets belong solely to them.
Because the spouses’ estates remain separate from each other, the assets (property) that they own, together with their debt (liabilities), will remain their own. If one spouse becomes insolvent, it does not affect the other spouse’s estate.
Spouses have contractual freedom and may enter just about any contract – if the specifications are not against “good morals of society”, i.e., not harmful to the moral welfare of society.
If one Spouse becomes insolvent, the other spouse’s assets cannot be attached.
The Spouses have their own separate estates, and joint financial planning can be difficult.
The spouse in a financially poorer situation may struggle, especially if they are a homemaker.
If the one spouse is a homemaker, they may be severely prejudiced by the other spouse growing that spouse’s estate while the homemaker falls behind.
Suppose you want to marry out of the community of property without Accrual. In that case, you must sign an Antenuptial Contract (most commonly referred to as an Ante-Nuptial Contract) which excludes the Community of Property and the Accrual.
An Antenuptial Contract has to be drawn up and signed by you and a Notary Public before your marriage. Not every Attorney is a qualified Notary Public.
They may therefore request that you sign a Special Power of Attorney. (This is a document to grant your Attorney signing powers for a specified thing), to allow them to sign your Ante-Nuptial Contract in the presence of a Notary Public.
The Notary Public will then lodge your Ante-Nuptial Contract with the Deeds Office for registration.
The registration process could take up to three months. However, to be valid, it only needs to be lodged – not registered – before the date of marriage.
In the case of death or divorce, each spouse is only entitled to those assets accrued in their own name.
Should one spouse choose to stay at home to raise the children, that spouse would not be entitled to the assets accumulated by the other spouse.
| Aspect | Community of Property | Out of Community with Accrual | Out of Community without Accrual |
| Asset Ownership During Marriage | Shared equally | Separate but with accrual benefits | Completely separate |
| Debt Liability | Shared equally | Separate | Separate |
| Control Over Assets | Joint | Individual | Individual |
| Division Upon Divorce | Split equally | Split based on accrued value | No sharing; retain own assets |
| Protection from Creditors | None | Individual | Individual |
| Suitability | Less financial independence | Balanced approach | Maximum financial independence |
What Does ‘Without Accrual’ Mean in This Type of Marriage?
It means that each spouse retains their own assets and liabilities both before and after the marriage, with no sharing upon divorce.
How Does This Affect Property Acquired During the Marriage?
Property acquired during the marriage is owned individually, depending on whose name it is registered under or who bought it.
Are Inheritances or Gifts Included in The Marital Estate?
No, inheritances and gifts received by one spouse remain their personal property.
What Happens to Assets and Debts in Case of Divorce?
Each spouse leaves the marriage with what they brought into it and what they acquired in own name during the marriage.
How Can We Set Up This Marital Regime, and Is a Postnuptial Agreement Possible?
Before marriage, sign an Ante Nuptial Contract with a Notary and register it at the Deeds Office.
If already married, you may apply for a postnuptial agreement by court approval, but this is complex and requires legal guidance.
We recommend a Marriage out of Community of Property with the exclusion of the Accrual System in the event of the Parties having a sizeable estate at the time of the marriage.
It is important to remember that this marital regime does not exclude a spouse’s right to spousal maintenance.
Read More:
Marriages with Accrual (Plus A Step-by-Step Guide on how to calculate the Accrual)
Marriage in Community of Property Pros and Cons
Contested or Opposed Divorces – What You Need to Know!
Unopposed or Uncontested Divorces – What You Need To Know!
The Divorce Process in South Africa
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