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A step-by-step guide to how the accrual system works, and how it is calculated
Marriage out of community of property with accrual is one of the most common matrimonial regimes in South Africa — each spouse keeps a separate estate during the marriage, but at divorce or death, the spouse whose estate grew less has a monetary claim against the other equal to half the difference in growth. Understanding how that growth, or “accrual,” is actually calculated is essential before signing an antenuptial contract.
This article provides general information about South African law. It does not constitute legal, financial or tax advice and does not predict the outcome of an individual matter.
| Question | General position |
| What is a marriage with accrual? | Each spouse has a separate estate during the marriage, but shares in the growth of both estates when the marriage ends. |
| Is this the default regime? | Yes. Every ANC concluded after 1 November 1984 is subject to accrual unless the ANC specifically excludes it. |
When is the accrual shared? | Only at dissolution of the marriage — by divorce or death — not during the marriage itself. |
What counts toward the commencement value? | Ordinary assets a spouse owned at marriage, adjusted for inflation using the CPI. |
Are all assets included? | No. Certain assets — those specifically excluded in the ANC, inheritances, donations, and non-patrimonial damages — are left out of the calculation entirely. |
Can you change your regime after marriage? | Potentially, through a court application under section 21 of the Matrimonial Property Act — not simply by signing a new document. |
A marriage out of community of property with accrual is a matrimonial regime where each spouse has their own separate estate throughout the marriage. Neither spouse automatically owns a share of the other’s assets while married.
The accrual system exists because, even though the estates remain separate, both spouses have usually contributed — financially or otherwise — to the overall growth in wealth during the marriage. At dissolution, the system ensures both spouses share in that growth, even though each spouse’s estate was legally their own throughout.
All marriages concluded out of community of property after 1 November 1984 are automatically subject to the accrual system, unless the ANC specifically excludes it.
The sharing of the accrual only happens at dissolution of the marriage — at the time of divorce, or on the death of a spouse. During the marriage itself, each spouse’s estate remains entirely their own.
Advantages. Each spouse retains control over their own estate and is protected from the other spouse’s creditors if that spouse is declared insolvent. A spouse with significant existing assets can exclude those specific assets in the ANC. Both spouses ultimately share in the growth of each other’s estates, and each remains free to contract independently.
Disadvantages. A spouse’s control over their estate can be limited where dealing with it would unduly prejudice the other spouse’s right to share in the accrual. Any property not properly excluded in the ANC will be taken into account when the accrual is calculated. The calculation itself can become complex where businesses, trusts, or shareholder loans are involved, and disputes often arise over valuation and disclosure.
Section 9 of the Divorce Act 70 of 1979 gives a court granting a divorce the discretion to order that a spouse’s right to share in the accrual be forfeited, wholly or in part, where the statutory undue-benefit test is satisfied.
For a detailed explanation of when this applies, see MVA’s guide: When Can Pension Benefits Be Forfeited in Divorce?
Two different sections of the Matrimonial Property Act exclude assets from the accrual calculation entirely, and the distinction matters:
Non-patrimonial damages a spouse receives are also excluded from the calculation.
These excluded assets are treated differently from an ordinary commencement value. An ordinary commencement value is adjusted for inflation and then subtracted from a spouse’s end estate value. An excluded asset is removed from the calculation entirely — it never counts, at either the start or the end.
For the detailed treatment of exclusions specifically, see MVA’s guide: Can You Exclude Assets From Accrual in an ANC?
The accrual of a spouse’s estate is the amount by which their estate’s net value at dissolution of the marriage exceeds its net value at commencement, after deducting the value of any excluded assets. The spouse with the smaller accrual has a claim against the other for half the difference between the two.
The net commencement value of an estate can be declared in the ANC itself, or in a separate statement made before the wedding or within six months afterward, signed by the other spouse and attested by a notary.
Where no commencement value was declared, it is deemed to be nil, unless the contrary is proved. If a spouse’s liabilities exceeded their assets at the start of the marriage, the value is also deemed to be nil.
Because money loses value over time, the commencement value must be adjusted for inflation using the Consumer Price Index (CPI), published in the Government Gazette, which serves as prima facie proof of the change in the value of money.
Non-patrimonial damages received by a spouse are excluded. Any asset expressly excluded under the ANC itself is excluded, along with its proceeds and any replacement asset acquired with those proceeds — this exclusion is a matter of contract, recorded in the ANC, not something achieved through a separate section 6 commencement-value statement. Any inheritance, legacy, or donation received from a third party is excluded, unless the ANC, testator, or donor stipulates otherwise. Donations between the spouses themselves are also excluded.
Using the published CPI figures, the commencement value is multiplied by the ratio of the CPI at dissolution to the CPI at commencement.
Worked example: if a spouse’s commencement value was R50,000 in 2010, and the CPI was 70.7 at commencement and 115.9 at dissolution in 2020, the adjustment factor is 115.9 ÷ 70.7 = 1.639321. The adjusted commencement value is R50,000 × 1.639321 = R81,966.05.
A full example showing both an ordinary commencement value and an excluded asset side by side helps illustrate how the two mechanisms operate differently.
Mr X and Mrs Y marry in 2010, with accrual.
At the time of the marriage:
At the time of divorce, in 2020:
Mr X | Mrs Y | |
Net estate value at dissolution | R800,000 | R400,000 (includes the original R100,000 investment, now grown to R163,932.10) |
Commencement value (2010) | R50,000 | R0 (her only asset at marriage was the excluded investment) |
Commencement value adjusted for CPI | R81,966.05 | R0 |
Value of excluded assets removed | R0 | R163,932.10 (the excluded investment, including its growth) |
Accrual | R800,000 − R81,966.05 = R718,033.95 | R400,000 − R163,932.10 = R236,067.90 |
Mrs Y has the smaller accrual, so she has a claim against Mr X for half the difference: (R718,033.95 − R236,067.90) ÷ 2 = R240,983.03.
Notice the difference in mechanics. Mr X’s ordinary commencement value was CPI-adjusted and subtracted from his end value.
Mrs Y’s excluded investment was removed from her end value entirely, without needing to be treated as a commencement value at all — this is what “excluded from accrual” actually means in practice, as distinct from simply having a low or nil commencement value.
Section 8(1) of the Matrimonial Property Act allows a court to order the immediate division of the accrual where a spouse’s right to share in it is being, or will probably be, seriously prejudiced by the other spouse’s conduct. This requires a court application, and the court will only grant the order if satisfied that no other person will be prejudiced.
For the detailed analysis, including the distinction between final relief and interim protection, see MVA’s guide: Can You Protect an Accrual Claim Before Divorce?
Potentially — but not simply by signing a new document. Section 21 of the Matrimonial Property Act provides a court-supervised process through which spouses may jointly apply to change their matrimonial property system. The court must be satisfied there are sound reasons for the change, that creditors have received proper notice, and that no other person will be prejudiced.
For the full process, see MVA’s guide: How to Change Your Matrimonial Property Regime After Marriage.
Commencement values in particular raise questions of their own, depending on how they were recorded and whether they are later disputed.
See MVA’s guides: Declared Commencement Values in an ANC Are Binding, Challenging Commencement Values in Accrual Claims, Antenuptial Contracts South Africa, Dissipating Assets in Anticipation of a Divorce and Can You Claim Redistribution if Your ANC Excludes Accrual?.
A marriage with accrual is often considered a fair and workable regime for many couples — each spouse keeps independent control of their own estate during the marriage, while still sharing fairly in whatever growth the marriage as a whole produced.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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