A marriage out of community of property with the accrual system is the most popular matrimonial property regime in South Africa. It is created by signing an antenuptial contract (ANC) before your wedding that includes the accrual system as provided for in Chapter I of the Matrimonial Property Act 88 of 1984.The fundamental principle is straightforward: during the marriage, each spouse manages their own estate independently — their own assets, their own debts, their own financial decisions. But when the marriage ends, whether by divorce or death, the growth each spouse's estate achieved during the marriage is compared and shared equally.
The core philosophy: Each party is entitled to take out the asset value they brought into the marriage, and then share what they built up together. It is sometimes described as a form of "deferred community of property" because the sharing happens only at the end.
This regime was introduced by the Matrimonial Property Act in 1984 to address a specific problem: under the old system (marriage out of community of property without accrual), a spouse who sacrificed their career to raise children or manage the household could walk away with almost nothing after decades of marriage. The accrual system ensures fairness without forcing couples into the risky "one joint estate" model of marriage in community of property.Important legal default: Since 1 November 1984, any antenuptial contract that excludes community of property and community of profit and loss is automatically subject to the accrual system — unless the contract specifically states that the accrual system is excluded. This was confirmed in Odendaal v Odendaal 2002 (1) SA 763 (W).
One of the most common misunderstandings is that the accrual system changes how your finances work while you are married. It does not. During the marriage, this regime gives you the same independence as a marriage without accrual:
The accrual system only activates — the "sharing mechanism" only triggers — when the marriage dissolves. Until that point, you are financially independent.In plain terms: While married, your money is your money and your spouse's money is theirs. Your spouse's creditors cannot touch your salary, savings, or property. Only when the marriage ends do you compare what each of you built and share the difference.
The net commencement value is perhaps the most important number in your antenuptial contract. It is the value of each spouse's estate at the start of the marriage, after deducting all debts. This figure establishes the baseline against which future growth will be measured.
Before the wedding, each spouse must honestly assess the value of their assets and subtract their liabilities. The formula is simple:Net Commencement Value FormulaNet Commencement Value = Total Assets − Total Debts
| Item | Spouse A | Spouse B |
|---|---|---|
| Vehicle | R180,000 | — |
| Savings account | R120,000 | R30,000 |
| Investment portfolio | R200,000 | — |
| Personal loan (debt) | (R50,000) | (R15,000) |
| Student loan (debt) | — | (R45,000) |
| Net Commencement Value | R450,000 | (R30,000)* |
*Important: If the net commencement value is negative (more debt than assets), the law deems it to be zero. A negative commencement value cannot be used to artificially inflate a spouse's accrual claim. Spouse B's commencement value would therefore be recorded as R0.
Section 6(1) of the Matrimonial Property Act provides that if the net commencement values are not stated in the antenuptial contract itself, the parties may make a separate declaration of their commencement values within six months of the date of marriage. This declaration must be signed by both spouses and attached to the original antenuptial contract.If no commencement value is declared: The law deems the commencement value to be zero. This means that on dissolution, the entire net value of that spouse's estate will count as accrual — all of it will be subject to sharing. If you have significant assets before the marriage, declaring your commencement value is essential to protect those pre-marital assets.
The declared commencement value is adjusted for inflation over time using the Consumer Price Index (CPI). This ensures that the accrual calculation reflects real growth, not merely the effects of inflation. Without this adjustment, a spouse might appear to have significant "growth" in their estate when, in real terms, the value has simply kept pace with inflation.For example, a commencement value of R400,000 in 2024 might be adjusted to R800,000 ten years later if the CPI has doubled. Only the growth above that adjusted figure would count as accrual.
Not all assets form part of the accrual calculation. Certain assets can be excluded, meaning they are not considered when determining how much each spouse's estate has grown. There are two categories of exclusions.
Section 5 of the Matrimonial Property Act automatically excludes the following from the accrual calculation:
In addition to the statutory exclusions, you may agree in your antenuptial contract to exclude specific additional assets from the accrual. Common examples include:
Practical advice: Think carefully about what you exclude. Excluding too many assets can undermine the purpose of the accrual system and leave one spouse without fair protection. At the same time, there may be good reasons to protect certain assets — for instance, a business that must remain within a family. Any exclusion must be clearly described in the contract to be enforceable.
When the marriage dissolves (by divorce or death), the accrual of each spouse's estate is calculated and compared. Here is the process:
Add up all assets and deduct all debts at the date of dissolution. Exclude any assets that are excluded by law or by agreement in the antenuptial contract.
The commencement value declared at the start of the marriage is adjusted for inflation using the CPI. This adjusted figure is deducted from the current net value.
The result is the accrual. If the net estate value exceeds the adjusted commencement value, the difference is the accrual. If the net estate value is less, the accrual is zero — it cannot be negative.
The spouse with the smaller accrual has a claim against the spouse with the larger accrual for half the difference between the two accruals.Worked Example — 10-Year MarriageAssume inflation has doubled prices over 10 years (CPI adjustment factor of 2).
| Spouse A | Spouse B | |
|---|---|---|
| Net commencement value (at marriage) | R400,000 | R30,000 |
| CPI-adjusted commencement value (×2) | R800,000 | R60,000 |
| Net estate value at dissolution | R3,000,000 | R260,000 |
| Accrual (net value − adjusted commencement) | R2,200,000 | R200,000 |
Difference between accruals: R2,200,000 − R200,000 = R2,000,000Spouse B's claim: R2,000,000 ÷ 2 = R1,000,000
Spouse B is entitled to claim R1,000,000 from Spouse A, ensuring the wealth built during the marriage is shared equitably.Remember: The accrual claim is a monetary claim — it is not a claim for specific assets. Spouse A does not have to hand over a house or car. They must pay R1,000,000. However, the court may order that satisfaction of the claim be deferred or paid in instalments if immediate payment would be unjust.
| Feature | In Community of Property | With Accrual ★ | Without Accrual |
|---|---|---|---|
| Legal document | No ANC needed (default) | Notarial ANC required | Notarial ANC required |
| Asset ownership | One joint estate (50/50) | Two separate estates | Two separate estates |
| Debt liability | Jointly liable — creditors can seize entire estate | Individually protected — assets shielded from spouse's creditors | Individually protected — total separation |
| Consent needed | Spousal consent required for major transactions | Full autonomy — no consent needed | Full autonomy — no consent needed |
| Sharing at divorce | 50/50 split of entire estate | Sharing of wealth grown during marriage only | No sharing — each keeps own assets |
| Inheritances | Fall into joint estate (unless Will excludes) | Automatically excluded from accrual | Remain separate property |
| Business protection | None — spouse exposed to business creditors | Full protection — separate estates | Full protection — separate estates |
| Fairness for stay-at-home spouse | Equal share regardless | Fair — shares in growth built during marriage | Unfair — may walk away with nothing |
| Best suited for | Not recommended for most couples | Most couples, especially first marriages | Second marriages, older couples, high-net-worth individuals |
If both of you are at the beginning of your careers with limited assets, the accrual system ensures you share the wealth you build together. It's the fairest foundation for a partnership.
If one partner will sacrifice career growth to raise children, the accrual system protects them. They share in the working spouse's financial growth during the marriage.
Protect your spouse from your business creditors while still ensuring they benefit from the marriage's overall financial growth. The "legal wall" protects both sides.
When one spouse earns significantly more, the accrual system prevents the lower-earning spouse from being disadvantaged while maintaining each party's financial independence during the marriage.
If one spouse brings significant pre-marital property into the marriage, the commencement value mechanism protects it. Only the growth above that value is shared.
If the idea of total separation (without accrual) feels too harsh, and the idea of total merger (in community) feels too risky, this is the balanced middle ground.
Although the accrual claim only arises at the dissolution of the marriage, Section 8 of the Matrimonial Property Act provides a crucial safeguard during the marriage.If one spouse is managing their estate in a way that seriously prejudices the other spouse's future right to share in the accrual — for example, recklessly dissipating assets, gambling, or transferring assets to third parties to defeat the accrual claim — the prejudiced spouse can apply to the High Court for an order for the immediate division of the accrual.Section 8(1) protection: The court may, on application, order an immediate division of the accrual if it is satisfied that a spouse's conduct is seriously prejudicing the other's right to share.
This is an extraordinary remedy — but it exists to prevent abuse. Additionally, the right to share in the accrual cannot during the marriage be transferred to anyone, be attached by creditors, or form part of a spouse's insolvent estate. This means your future accrual claim is protected from your spouse's financial troubles until the marriage actually ends.
The Matrimonial Property Act provides significant freedom of contract. While the default is a 50/50 sharing of the accrual, several elements can be customised:
The default is 50%, but you can specify any percentage. Some couples agree on 60/40 or 70/30 splits, particularly when one spouse contributes significantly more initial capital or has a specialised business interest. You can even agree on a capped amount rather than a percentage.
As discussed above, you can exclude specific assets from the accrual calculation — a family business, property, retirement fund, or investment portfolio.
The antenuptial contract can include donation clauses that transfer specified assets between spouses. In South Africa, donations between spouses are exempt from Donations Tax under Section 56(1)(b) of the Income Tax Act, making this a tax-efficient tool for balancing estates.
This is a mutual inheritance agreement included in the antenuptial contract, where the spouses agree to leave certain assets to each other on death. Once registered, it cannot be unilaterally revoked, providing certainty for both parties.
Complete our online application form. We will contact you to discuss whether "With Accrual" or "Without Accrual" best suits your circumstances, and what customisations (if any) are appropriate.
We draft your customised antenuptial contract within 24–48 hours. You receive the draft for review before execution.
Both parties must sign the contract before our Notary Public, in the presence of two competent witnesses. If one spouse cannot be present (for example, if they are overseas), a Power of Attorney can be used.
On signing, our Notary issues a certificate to present to your marriage officer. This allows your wedding to proceed immediately while we handle registration.
We lodge the contract at the Deeds Office for registration. The contract must be registered within three months of execution. We handle the entire lodgement process at the Pretoria Deeds Office.
Once we receive the original registered contract from the Deeds Office, we notify you. You can collect in person or we can courier it via PostNet or The Courier Guy.
Timing is critical:
The antenuptial contract must be signed before the marriage ceremony. If you sign the marriage register before signing the ANC, it is legally too late. If you miss this window, a costly High Court application for a postnuptial contract is required.
