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Understanding in community of property, accrual and marriages without accrual
The matrimonial property regime that applies to a marriage can have a major effect on ownership of assets, responsibility for debts, financial independence during the marriage and the division of wealth when the marriage ends.
For South African civil marriages and civil unions, the three principal matrimonial property regimes are marriage in community of property, marriage out of community of property with the accrual system, and marriage out of community of property without the accrual system.
The correct regime should ideally be considered before the marriage because spouses who want to marry out of community of property ordinarily need to conclude an antenuptial contract before marrying. If no valid ANC applies, a civil marriage will ordinarily be in community of property.
This article provides a general overview of the three systems and explains where more detailed advice may be required.
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 |
In community of property | The spouses generally have one joint estate and share its assets and liabilities, subject to statutory exceptions. |
Out of community of property with accrual | Each spouse has a separate estate during the marriage, but growth in the estates may be shared when the marriage ends. |
Out of community of property without accrual | Each spouse generally retains a separate estate and there is no contractual accrual-sharing mechanism. |
Can forfeiture alter the ordinary result? | Potentially. Section 9 of the Divorce Act permits full or partial forfeiture of patrimonial benefits where the statutory undue-benefit test is satisfied. |
Want to change the regime after marriage? | A private agreement is generally not enough. A court process under section 21 of the Matrimonial Property Act may be required. |
Marriage in community of property generally creates one joint estate. Assets and liabilities belonging to the spouses ordinarily fall into that joint estate, subject to recognised statutory and legal exceptions.
Each spouse has an undivided interest in the joint estate. This regime can therefore affect property ownership, liability for debts, business interests, investments, vehicles, bank accounts, contractual capacity and the division of the estate at divorce.
The Matrimonial Property Act also imposes consent requirements for certain transactions involving the joint estate.
A spouse cannot simply assume that they are free to dispose of every significant joint-estate asset without considering the other spouse’s rights.
For a detailed explanation of this regime, see MVA’s guide: Marriage in Community of Property: Pros and Cons.
The starting point in a marriage in community of property is ordinarily an equal division of the joint estate. That does not mean that every asset must physically be divided in half.
Spouses may agree that particular assets are retained by one spouse and others by the other, provided the overall settlement properly deals with the joint estate.
In contested matters, additional issues may arise, including forfeiture of patrimonial benefits, dissipation of joint-estate assets, pension interests, business interests, debts, trusts and disputes about whether particular assets fall within the joint estate.
The ordinary consequences of a matrimonial property regime may, in some cases, be altered by a forfeiture of patrimonial benefits order under section 9 of the Divorce Act 70 of 1979.
A forfeiture order is not automatic and is not simply a punishment for marital misconduct.
The court must consider whether one spouse would otherwise be unduly benefited, having regard to the statutory factors, including the duration of the marriage, the circumstances that gave rise to its breakdown and any substantial misconduct.
Forfeiture may be ordered wholly or in part, depending on the circumstances. For a detailed explanation, see MVA’s guide: When Can Pension Benefits Be Forfeited in Divorce?
In a marriage out of community of property with accrual, the spouses retain separate estates during the marriage.
One spouse does not automatically become co-owner of the other spouse’s assets merely because they are married.
The sharing mechanism generally arises when the marriage is dissolved by divorce or death. Broadly, the accrual system measures the growth of each spouse’s estate during the marriage.
The spouse whose estate has shown the smaller accrual may acquire a monetary claim based on the difference between the accrual of the two estates.
Where the accrual system applies, the value of each spouse’s estate at the commencement of the marriage may become important. The commencement value provides a starting point from which the growth of the estate is measured.
The effect of a commencement value also depends on how it was recorded. A commencement value expressly agreed and declared in the ANC may have a different legal effect from a value later declared in a separate section 6 statement.
MVA deals with those questions separately in Declared Commencement Values in an ANC Are Binding and Challenging Commencement Values in Accrual Claims.
Not every asset necessarily forms part of the accrual calculation. The Matrimonial Property Act provides statutory exclusions, and a properly drafted ANC may also exclude certain identifiable assets in appropriate circumstances.
The precise wording matters. A provision excluding an asset from accrual is not the same thing as simply recording that asset as part of a spouse’s commencement value.
MVA deals with these issues in Can You Exclude Assets From Accrual in an ANC?, Are Replacement Assets Excluded from Accrual in an ANC?, and Are Inheritances Excluded from Accrual?
Because spouses married with accrual retain separate estates during the marriage, one spouse does not ordinarily have ownership of the other spouse’s assets merely because an eventual accrual claim may arise.
However, the Matrimonial Property Act provides protection where conduct threatens an accrual claim.
Section 8 may, in appropriate circumstances, allow a court to order immediate division of the accrual where a spouse’s right to share in it is being, or will probably be, seriously prejudiced.
For the specialist analysis, see Can You Protect an Accrual Claim Before Divorce? and Dissipating Assets in Anticipation of a Divorce.
In a marriage out of community of property without accrual, each spouse generally maintains a separate estate. There is no contractual accrual-sharing calculation when the marriage ends.
In simple terms, each spouse ordinarily retains the assets and liabilities belonging to their separate estate.
This provides a high degree of financial separation, but it can also produce very different outcomes where one spouse accumulates substantial wealth while the other makes non-financial or indirect contributions during the marriage.
For more detail, see MVA’s guide: Marriage Out of Community of Property Without Accrual.
It is important not to describe a no-accrual marriage as meaning that one spouse can never have a claim against the other spouse’s estate.
The Constitutional Court’s decision in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32 materially changed access to redistribution relief under section 7(3) of the Divorce Act.
A spouse married out of community of property without accrual may, in appropriate circumstances, seek a redistribution order even where the marriage was concluded after 1 November 1984.
The remedy is not automatic. It remains discretionary and requires the statutory requirements to be established.
For the detailed treatment, see Can You Claim Redistribution if Your ANC Excludes Accrual?
An antenuptial contract, commonly referred to as an ANC, is the agreement used to regulate a marriage out of community of property.
Depending on its terms, the ANC may include or exclude the accrual system, record commencement values, identify particular excluded assets and regulate aspects of the spouses’ chosen matrimonial property system.
The document should be properly prepared before marriage. For the broader guide, see Antenuptial Contracts South Africa.
An ANC that was not properly registered raises a different legal issue from simply choosing the wrong matrimonial regime. The consequences may differ between the spouses themselves and third parties.
That topic is dealt with separately in What Happens if an ANC Is Not Registered? The important point for this overview is that spouses should not assume that an unregistered document automatically has no legal relevance, or that it necessarily produces the matrimonial regime they intended.
The facts and documents must be examined carefully.
Potentially, yes – but spouses cannot ordinarily achieve this simply by signing a new ANC or private postnuptial agreement.
Section 21 of the Matrimonial Property Act provides a court-supervised mechanism through which spouses may jointly apply to change their matrimonial property system.
The court must consider statutory requirements including sound reasons, notice to creditors and potential prejudice to third parties.
For the full process, see How to Change Your Matrimonial Property Regime After Marriage.
The matrimonial property consequences of customary marriages are governed by the Recognition of Customary Marriages Act and related law.
A monogamous customary marriage may have important community-of-property consequences, and the timing of any ANC can be critical.
A later civil marriage between the same spouses does not simply provide a fresh opportunity to change the existing matrimonial property system.
The Constitutional Court addressed this issue in VVC v JRM [2026] ZACC 2. For the specialist explanation, see Can You Sign an ANC After a Customary Marriage?
It is useful to distinguish the legal form of the relationship from its matrimonial property system. South African law recognises civil marriages, civil unions and customary marriages, subject to their respective statutes.
The matrimonial property regime deals with financial consequences such as ownership, debts and asset sharing. Those concepts overlap, but they are not identical.
There is no single regime that is appropriate for every couple.
Relevant considerations may include assets already owned, business interests, existing debts, expected future wealth, inheritances, financial dependence, children, risk exposure, estate planning, whether one spouse expects to reduce employment to care for children, and how much financial independence the spouses want during the marriage.
The decision should be made before the wedding where possible. An ANC should not be treated as a document to sign quickly because the wedding date is approaching.
For most South African civil marriages, the default position is marriage in community of property.
No. The spouses retain separate estates during the marriage. Accrual generally creates a sharing mechanism when the marriage ends.
No. Accrual ordinarily applies to marriages out of community of property unless it is expressly excluded in the ANC for marriages governed by the Matrimonial Property Act.
That is the basic structure, but redistribution relief under section 7(3) may now be available in qualifying cases following EB/KG.
Potentially. Section 9 of the Divorce Act allows a court to order full or partial forfeiture of patrimonial benefits where the statutory undue-benefit test is satisfied.
Potentially, but a court application under section 21 may be required.
Customary marriages have their own statutory framework, and the circumstances of the marriage must be considered carefully.
Choosing or determining the correct matrimonial property regime can have consequences that extend far beyond divorce. It may affect ownership, debt exposure, business interests, pension claims, estate planning, financial independence and what happens when the marriage ends.
Martin Vermaak Attorneys Inc. advises on South African antenuptial contracts, matrimonial property regimes, accrual claims, redistribution claims, customary marriages and applications to change matrimonial property systems.
Where a marriage already exists and there is uncertainty about the applicable regime, the first step is usually to examine the marriage documents, ANC and chronology rather than relying on assumptions about how the parties believed they were married.
For related guidance, see MVA’s articles on Marriages with Accrual in South Africa and Divorce: Who Gets What in South Africa?.
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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