A marriage out of community of property without the accrual system is the complete separation regime. It is created by signing an antenuptial contract (ANC) before the wedding that excludes community of property, community of profit and loss, and the accrual system as provided for in Chapter I of the Matrimonial Property Act 88 of 1984.The fundamental principle is absolute: each spouse retains their own separate estate — their own assets, their own debts, their own financial decisions — both during the marriage and when it ends. There is no sharing mechanism, no equalisation formula, and no adjustment for growth. When the marriage dissolves, each spouse walks away with exactly what is in their own name.
The core principle: "What's mine is mine, and what's yours is yours." This applies to assets brought into the marriage, assets acquired during the marriage, debts incurred before the marriage, and debts incurred during the marriage. Complete financial separation from start to finish.It is important to understand that this regime does not happen by accident. Since 1 November 1984, when the Matrimonial Property Act came into force, any antenuptial contract that excludes community of property is automatically subject to the accrual system unless the contract specifically states that the accrual is excluded. If you want marriage without accrual, the exclusion must be expressly written into the antenuptial contract.
Critical distinction: If your antenuptial contract excludes community of property but says nothing about the accrual system, the accrual applies by default. The accrual must be explicitly excluded in the contract. This was confirmed by the court in Odendaal v Odendaal 2002 (1) SA 763 (W). An experienced Notary Public will ensure the correct wording is used.
The financial consequences during the marriage are identical to marriage out of community of property with accrual. Both regimes give you full independence while married:
This is where the critical difference lies. When the marriage dissolves — whether by divorce or by the death of a spouse — there is no sharing of growth. Unlike the accrual system, there is no calculation, no comparison of estates, and no claim by one spouse against the other for a share of wealth built during the marriage.
Each spouse simply retains whatever is in their own name. If the house is registered in your spouse's name, you have no automatic claim to it. If a business was built in your spouse's name during 20 years of marriage, you have no automatic claim to a share of its growth.The duty of support remains: Despite the complete separation of estates, both spouses retain a reciprocal duty of support during the marriage. This means each spouse must contribute to the reasonable maintenance of the household according to their respective means. The duty of support is a feature of marriage itself — not of the property regime.
Marriage without accrual is not the right choice for every couple. It is best suited to specific circumstances where complete financial separation is genuinely appropriate and fair.💍
When one or both spouses have children from a previous relationship, this regime protects those children's inheritance. The assets remain in the parent's name and pass to the children without any accrual claim from the new spouse.
If you own a business with significant value before the marriage and want to ensure it remains entirely yours — with no accrual claim on its future growth — this regime provides the strongest protection.
When both spouses have established, independent financial lives — retirement funds, property portfolios, investments — and neither will sacrifice their career for the marriage.
When one spouse brings substantially greater wealth into the marriage and wants to protect that wealth and its future growth from any claim on dissolution.
When a family property, farm, or trust interest must remain within the family line. This regime prevents any accrual claim that might force a sale or transfer of the asset.
When both partners have strong, independent careers and neither plans to sacrifice earning capacity for the marriage. Both will continue to build their own wealth independently.
Not recommended for: Young couples starting out together, marriages where one spouse plans to stay home to raise children, or situations where there is a significant income disparity and one spouse will be financially dependent on the other. In these cases, the accrual system is almost always the fairer choice.
Divorce After 15 Years — Without AccrualSipho and Lerato married in 2010 with an ANC excluding accrual. Sipho built a business; Lerato stayed home to raise their three children.
| Asset | Sipho | Lerato |
|---|---|---|
| Business interests | R4,500,000 | — |
| Property (in own name) | R2,800,000 | — |
| Retirement fund | R1,200,000 | R85,000 |
| Vehicles | R650,000 | R180,000 |
| Savings and investments | R900,000 | R40,000 |
| Total estate at divorce | R10,050,000 | R305,000 |
Without accrual: Each spouse walks away with what is in their own name. Sipho keeps R10,050,000. Lerato keeps R305,000. There is no accrual claim.If they had chosen accrual instead: Assuming both started with commencement values of zero, Lerato would have had an accrual claim of approximately R4,872,500 — half the difference between the two estates' growth.
This illustrates the dramatic financial impact of the choice between these two regimes.The example above illustrates why this regime has been criticised as potentially unfair. Lerato sacrificed 15 years of earning capacity to raise the couple's children, indirectly enabling Sipho's business success. Without the accrual system, her contribution receives no financial recognition on divorce.
Despite the absence of asset sharing, a spouse in a marriage without accrual can still claim spousal maintenance on divorce. Section 7(2) of the Divorce Act gives the court discretion to award maintenance based on factors including the existing means of each spouse, their earning capacity, their financial needs, the standard of living during the marriage, their conduct in relation to each other, the duration of the marriage, and any other relevant factor.Maintenance is typically a monthly payment for a defined period or until a specified event (such as remarriage). It is not a share of the estate — it is ongoing support. The amount and duration depend entirely on the court's discretion.
When one spouse dies in a marriage without accrual, the surviving spouse has no automatic claim against the deceased's estate based on the marital property regime. The deceased spouse's assets are distributed according to their will (or the Intestate Succession Act if there is no will).
The estate is distributed according to the will. The surviving spouse receives only what the will provides for them. The deceased was free to leave everything to their children, a trust, or any other beneficiary.
The Intestate Succession Act 81 of 1987 provides for the surviving spouse. The exact share depends on whether the deceased also left descendants (children). In general, if there are both a surviving spouse and descendants, the surviving spouse inherits either R250,000 or a child's share (whichever is greater), with the balance going to the descendants.
Regardless of the marital property regime, a surviving spouse can claim reasonable maintenance from the deceased's estate under the Maintenance of Surviving Spouses Act 27 of 1990. This is a claim for support, not a claim for a share of assets. The executor of the deceased estate must take this claim into account before distributing the estate to the heirs.Practical advice: If you choose marriage without accrual, it is critically important that both spouses have up-to-date wills that provide adequately for the surviving spouse. Without a will and without the accrual safety net, the surviving spouse may find themselves in a very vulnerable position.
Landmark judgment: On 10 October 2023, the Constitutional Court of South Africa fundamentally changed the legal landscape for marriages out of community of property without accrual. This is the most significant development in South African matrimonial property law since the Matrimonial Property Act itself was introduced in 1984.
The Constitutional Court heard two interconnected cases — EB (born S) v ER (born B) and Others (CCT 364/21) and KG v Minister of Home Affairs and Others (CCT 158/22) — both challenging Section 7(3) of the Divorce Act 70 of 1979.Before this judgment, Section 7(3) allowed courts to order a "redistribution of assets" on divorce — but only for marriages entered into before 1 November 1984 (before the accrual system existed). Spouses who married after 1984 and chose to exclude accrual were left without any redistribution remedy, on the reasoning that they had freely chosen total separation.
The Constitutional Court declared Section 7(3) unconstitutional and invalid to the extent that it excluded:
The Court found that the distinction based on the date of marriage constituted unfair discrimination — particularly against women, who are disproportionately the financially disadvantaged spouse. The Court held that the value of "choice" alone was not sufficient to justify denying a redistribution remedy to spouses who contributed to the growth of their partner's estate.
Since 10 October 2023, a spouse in a marriage without accrual can apply to the court during divorce proceedings for a redistribution order under Section 7(3). However, this is not an automatic entitlement. The applying spouse must prove that they contributed — directly or indirectly — to the maintenance or growth of the other spouse's estate. Contributions can include running the household, raising children, supporting the other spouse's career, or other non-financial contributions.The court retains discretion. It will consider factors including the duration of the marriage, each spouse's contributions, the existence of the antenuptial contract and the parties' reasons for choosing this regime, and any other relevant circumstances. The fact that the couple specifically chose to exclude accrual will be a factor the court considers, but it is no longer an absolute bar to redistribution.The practical effect: Marriage without accrual no longer guarantees absolute separation on divorce. A spouse who contributed to the marriage — even through non-financial means — may now have a claim for redistribution. This does not make it identical to the accrual system (there is no automatic formula), but it does introduce a degree of judicial discretion that did not exist before.Parliament was given 24 months from 10 October 2023 to amend the Divorce Act to bring it in line with the Constitution. In the interim, Section 7(3) is read to include all marriages without accrual regardless of when they were entered into. The first successful application of this judgment was in CHC v CC in the Gauteng Division of the High Court, where a stay-at-home wife of a marriage concluded in 2007 was awarded one of her husband's properties as redistribution.
| Feature | In Community of Property | With Accrual | Without Accrual ★ |
|---|---|---|---|
| Legal document | No ANC needed (default) | Notarial ANC required | Notarial ANC — must expressly exclude accrual |
| Asset ownership | One joint estate (50/50) | Two separate estates | Two separate estates |
| Debt liability | Jointly liable — creditors can seize entire estate | Individually protected | Individually protected — total separation |
| Consent needed | Spousal consent required for major transactions | Full autonomy | Full autonomy — total independence |
| Sharing at divorce | 50/50 split of entire estate | Sharing of wealth grown during marriage | No automatic sharing — each keeps own assets* |
| Inheritances | Fall into joint estate (unless Will excludes) | Automatically excluded from accrual | Remain separate — not relevant |
| Business protection | None | Full protection — but growth is shared at end | Maximum protection — growth stays with owner |
| Fairness for stay-at-home spouse | Equal share regardless | Fair — shares in growth | Potentially unfair — may walk away with nothing* |
| Best suited for | Not recommended | Most couples, first marriages | Second marriages, older couples, high-net-worth individuals |
* Since the 2023 EB v ER Constitutional Court judgment, a court may order redistribution of assets even in marriages without accrual if a spouse can prove their contribution to the other's estate growth.
During the marriage, both regimes work exactly the same way — complete financial independence, separate estates, no shared debts. The difference only emerges when the marriage ends.The Same Marriage, Two Different OutcomesBoth spouses started with commencement values of R0. After 12 years of marriage:
| Spouse A | Spouse B | |
|---|---|---|
| Net estate at divorce | R5,000,000 | R200,000 |
| Without accrual — each keeps own | R5,000,000 | R200,000 |
| With accrual — share the growth | R2,600,000 | R2,600,000 |
The difference: R2,400,000. This is the value of the accrual claim that Spouse B forfeits by choosing "without accrual." In this scenario, the choice of regime represents a potential R2.4 million difference in outcome for the financially weaker spouse.The question every couple must ask is: if one of us sacrifices earning capacity for the benefit of the family, is it fair that the other walks away with all the financial growth? If the answer is no, the accrual system is the right choice. If both spouses will maintain independent careers and build their own wealth throughout the marriage, then excluding the accrual may be appropriate.
Complete our online application form. We will discuss your circumstances and confirm that "Without Accrual" is the appropriate choice. We have a professional obligation to ensure both parties understand the consequences of excluding the accrual system.
We draft your customised antenuptial contract within 24–48 hours. The contract will expressly exclude community of property, community of profit and loss, and the accrual system. 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. The Notary must be satisfied that both parties understand the contract — particularly the consequences of excluding the accrual — and sign voluntarily. If one spouse cannot be present, 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 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 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 the marriage register is signed before the ANC, it is legally too late — you will be married in community of property by default. If you miss this window, a costly High Court application for a postnuptial contract is required.
