Marriage Out of Community of Property WITHOUT Accrual. Total Financial Independence & Estate Separation
Choosing to marry Out of Community of Property without the Accrual System is the most direct way to ensure complete financial autonomy. In this regime, there is no sharing of assets or growth—what belongs to you remains yours, and what belongs to your spouse remains theirs, both during the marriage and upon its dissolution.
How the "No-Accrual" System Works
By signing a Notarial Deed before your wedding that specifically excludes the Accrual System (as defined in the Matrimonial Property Act), you create a total "legal wall" between your estates.
- Total Asset Autonomy: Each spouse retains full ownership and control of their property, whether acquired before or during the marriage.
- Ultimate Debt Protection: Under Section 21 of the Insolvency Act, your assets are shielded from your spouse’s creditors. If one spouse faces business failure or insolvency, the other’s estate remains legally untouchable.
- No Sharing of Growth: Unlike the Accrual System, there is no calculation of wealth "growth" at the end of the marriage. Upon death or divorce, each party leaves with exactly what is registered in their own name.
Who is this Regime Best Suited For?
While "With Accrual" is popular for first-time marriages, the Without Accrual option is the practical choice for specific circumstances:
- Second Marriages: When parties want to ensure their respective estates are preserved for children from a previous marriage.
- Established Wealth: When both parties have already amassed significant separate estates and wish to keep them entirely independent.
- High-Risk Entrepreneurs: Where a spouse wants to ensure that no part of their wealth—past or future—can ever be linked to the other's commercial risks.
- Marriages of Convenience or Late-Life Unions: Where the focus is on simplicity and maintaining the status quo of existing financial structures.
Expert Note: This regime requires careful thought. If one spouse intends to stay at home to raise children, they will not be entitled to a share of the assets accumulated by the working spouse unless specifically provided for in a Will or through separate donations. A financially dependent party can still claim maintenance.
COMPARISON TABLE ANTENUPTIAL CONTRACTS
| Feature | In Community of Property | Out of Community (WITH Accrual) | Out of Community (WITHOUT Accrual) |
| Legal Status | One Joint Estate (Default) | Two Separate Estates | Two Separate Estates |
| Before Marriage | No ANC required. | ANC signed before a Notary. | ANC signed before a Notary. |
| Debts & Liability | Joint Liability. Creditors can seize all assets for either spouse's debt. | Protected. Creditors generally cannot touch the other spouse's assets. | Protected. Total separation of assets and liabilities. |
| Contractual Power | Joint consent required for most major transactions (buying property, etc.). | Full Independence. No consent needed for contracts or purchases. | Full Independence. Total financial autonomy. |
| At Death or Divorce | Joint estate is split 50/50. | Sharing of Growth. The spouse with the smaller growth claims half the difference. | No Sharing. Each spouse keeps only what is in their own name. |
| Key Advantages | Promotes total economic equality. | The Fair Choice. Shares wealth built together while protecting pre-marital assets. | Asset Safety. Ideal for protecting business interests or existing wealth. |
| Major Risk | Insolvency Risk. One spouse's business failure ruins both parties. | Requires accurate record-keeping of "Commencement Values." | Can leave a non-earning spouse financially vulnerable. |
| Best Suited For | Not Recommended in modern South African law due to high risk. | Younger Couples starting a life together or business owners. | Second Marriages, couples with children from previous unions, or high-net-worth individuals. |
