Can we change from "without accrual" to "with accrual" after marriage?
Yes, but it requires a court application under Section 21 of the Matrimonial Property Act. Both spouses must consent, and the court must be satisfied that no creditor or other person will be prejudiced by the change.
As the court noted in Lourens et Uxor 1986(2) SA 291 (C), there must be "sound reasons" for the proposed alteration. This process is expensive (typically R15,000–R25,000) and takes 3–5 months. It is far better to make the right choice before the wedding.
Does the 2023 EB v ER ruling mean "without accrual" no longer works?
No. Marriage without accrual still provides complete separation of estates during the marriage and full protection from your spouse's creditors. What the ruling changed is that on divorce, a court now may order redistribution of assets if a spouse can prove they contributed to the growth of the other's estate.
However, this is not automatic — the applying spouse bears the burden of proof, and the court retains full discretion. The fact that the parties specifically chose to exclude the accrual system is a factor the court will consider. This regime still offers stronger asset protection than the accrual system.
If I own a business, does "without accrual" protect it completely?
During the marriage, yes — your spouse's creditors cannot touch your business assets. On divorce, the business remains in your name with no automatic accrual claim. However, since the EB v ER judgment, if your spouse contributed to the business's growth (even indirectly, such as by managing the household while you built the business), they could potentially apply for a redistribution order.
In practice, this provides significantly more protection than marriage with accrual, where the business growth would automatically form part of the accrual calculation.
Do I need a will if we marry without accrual?
Absolutely. Without the accrual system, your surviving spouse has no automatic claim to a share of your estate's growth. If you die without a will, the Intestate Succession Act determines distribution, which may not reflect your wishes and may leave your spouse inadequately provided for. Both spouses should execute comprehensive wills that are consistent with the antenuptial contract.
Can my spouse claim maintenance on divorce even without accrual?
Yes. Spousal maintenance under Section 7(2) of the Divorce Act is entirely separate from the property regime. A court can order maintenance based on the existing and prospective means of both spouses, their respective earning capacities, financial needs, and standard of living during the marriage. Maintenance is not a share of the estate — it is ongoing support, usually a monthly payment.
What about property we buy together during the marriage?
If you purchase property jointly (both names on the title deed), you each own your registered share — typically 50%. This is ordinary co-ownership and is unrelated to the marital property regime. On divorce, the co-owned property would be dealt with as an asset held in undivided shares. However, if the property is registered in only one spouse's name, the other spouse has no automatic claim to it, even if they contributed to bond repayments.
Is marriage without accrual cheaper than with accrual?
No. Our fee is the same regardless of whether you choose with or without accrual — R1,950 all-inclusive. The drafting complexity is similar: both contracts require careful drafting by a Notary Public, registration at the Deeds Office, and professional oversight. The difference is not cost — it is the consequences that flow from the contract for the rest of your married life.
What if one spouse is overseas — can we still sign?
Yes. The absent spouse can sign a special Power of Attorney authorising a representative to appear before the Notary and sign the ANC on their behalf. This is a common service we provide for international and long-distance couples.
My fiancé wants "without accrual" but I'm not comfortable. What should I do?
This is a serious conversation to have before the wedding. We recommend that each party obtain independent legal advice so that both of you fully understand the consequences. Our Notary Public has a professional obligation to explain the implications to both parties before the contract is signed.
If you are uncomfortable, the accrual system offers a middle ground: full independence during the marriage, but fair sharing of growth at the end.
