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.
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.
Marriage in community of property is the default matrimonial property regime in South Africa. If you marry without first signing and registering an antenuptial contract (ANC) with a Notary Public, the law automatically places you in this regime. No paperwork is needed — and that is precisely the problem. Many couples fall into it simply because they did not know they had a choice, or because they ran out of time before the wedding.
The fundamental principle is total merger: on the day of your marriage, your separate estates cease to exist. Everything you own and everything your spouse owns — assets acquired before the marriage, assets acquired during the marriage, debts incurred before the marriage, and debts incurred during the marriage — merges into a single joint estate. Both spouses own an undivided half-share of this joint estate.
The critical consequence: In a marriage in community of property, there is no distinction between "your" assets and "their" assets. There is only "our" estate. If your spouse runs up R500,000 in business debts, those debts become debts of the joint estate — and creditors can seize your salary, savings, car, and share of the house to satisfy them. You have no legal wall of protection.This regime is governed by Chapter III of the Matrimonial Property Act 88 of 1984, which abolished the old marital power (which previously gave husbands sole control over the joint estate) and established equal powers for both spouses in the administration of the joint estate.
Almost everything merges into the joint estate. This includes:
There are limited exceptions — assets that do not form part of the joint estate even in a marriage in community of property:
A common misconception: Many people believe that only assets acquired "during the marriage" are shared. This is incorrect. In a community of property, premarital assets also merge. If you own a house worth R2,000,000 before the wedding and your spouse has R200,000 in student debt, both the house and the debt become part of the joint estate the moment you sign the marriage register.
Because the joint estate belongs to both spouses equally, the Matrimonial Property Act imposes strict requirements on what each spouse can and cannot do without the other's consent. Section 15 of the Act sets out a tiered consent system.
Under Section 15(2), a spouse may not do the following without the other spouse's written consent:
| Transaction | Consent Required |
|---|---|
| Sell, mortgage, or burden immovable property (house, land, farm) | Written consent + 2 witnesses |
| Enter into a credit agreement under the National Credit Act | Written consent + 2 witnesses |
| Enter into a contract to buy land under the Alienation of Land Act | Written consent + 2 witnesses |
| Sell or pledge investments held for investment purposes (shares, art, jewellery, coins) | Written consent |
| Cede or pledge insurance policies, mortgage bonds, or fixed deposits | Written consent |
| Withdraw money from the other spouse's bank account | Written consent |
| Sign a deed of suretyship (guaranteeing someone else's debt) | Written consent* |
* Exception: If the suretyship is in the ordinary course of the spouse's business, trade, or profession, no consent is required (Section 15(6)), as confirmed in Ockie Strydom v Engen Petroleum (2012) SCA.
Under Section 15(3), a spouse may not donate from the joint estate where the donation unreasonably prejudices the other spouse's interests — such as giving away furniture from the common household or making substantial gifts to third parties without consent.
Section 15(9) addresses this scenario in two ways. If the third party did not know (and could not reasonably have known) that consent was required, the transaction is deemed valid — the innocent third party is protected, as confirmed in Vukeya v Ntshane 2022 (2) SA 452 (SCA). However, when the joint estate is divided on divorce or death, the court can adjust the division to compensate the innocent spouse for any loss suffered.If a spouse unreasonably withholds consent, the other spouse can apply to the court under Section 16 for permission to proceed without consent.
Under Section 17, a spouse married in community of property cannot institute or defend legal proceedings without the other spouse's written consent, except for proceedings to protect personal rights, proceedings between the spouses themselves, and proceedings in the ordinary course of business.
The practical burden: These consent requirements create significant friction in daily financial life. Every major financial decision — buying property, taking out a loan, applying for credit, signing a surety — requires your spouse's involvement and signature. If your relationship is strained or your spouse is uncooperative, your financial life can be paralysed.
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All debts — including debts your spouse incurs without your knowledge — become debts of the joint estate. If your spouse defaults on a business loan, creditors can claim against your assets, your salary, and your savings.
If one spouse is declared insolvent, both spouses are effectively insolvent — because there is only one joint estate. Your assets, your career, your credit record — all affected by your spouse's financial decisions.
If your spouse's business fails, creditors can pursue the joint estate, including your personal assets. You cannot protect your salary or savings from your spouse's business creditors.
Major transactions require spousal consent. If your relationship deteriorates, your spouse can effectively block you from selling property, taking credit, or defending a lawsuit — paralysing your financial life.
Spouses married in community of property generally cannot sue each other for financial damages, because money taken from the joint estate to pay one spouse simply falls back into the same joint estate.
On death, the joint estate must first be divided before the deceased's half can be distributed to heirs. This adds complexity, time, and cost to estate administration — and may delay the surviving spouse's access to funds.
Insolvency risk is the single most compelling reason legal professionals advise against marriage in community of property. When one spouse becomes insolvent (cannot pay their debts), both spouses are effectively declared insolvent — because there is only one joint estate, and the Insolvency Act applies to the entire estate. Insolvency ScenarioThabo is an entrepreneur. Naledi is a teacher. They are married in community of property. Thabo's business fails.
| Asset | In Whose Name | Value |
|---|---|---|
| Family home | Both names | R2,500,000 |
| Naledi's savings (from her salary) | Naledi | R380,000 |
| Naledi's vehicle | Naledi | R250,000 |
| Thabo's business debts | Thabo | (R1,800,000) |
The reality: Despite Naledi never having been involved in Thabo's business, the family home, her savings, and her vehicle are all part of the joint estate. The business creditors can claim against all of these assets. If Thabo is sequestrated, Naledi loses her home, her savings, and her vehicle — even though she had nothing to do with the business.
If they had signed an ANC: In a marriage out of community of property (with or without accrual), Naledi's savings and vehicle would be in her separate estate, untouchable by Thabo's creditors. The family home, if registered in Naledi's name, would also be protected.The insolvency consequences extend beyond the immediate financial loss. Both spouses may be blacklisted on credit bureaus, making it difficult to obtain credit, open bank accounts, or even rent property for years after the sequestration is discharged.
Section 20 — Emergency Protection: If a spouse's conduct is seriously prejudicing the other spouse's interest in the joint estate, Section 20 of the Matrimonial Property Act allows the prejudiced spouse to apply to the High Court for an order for the immediate division of the joint estate. However, this is an expensive, time-consuming legal process — not a quick fix. Prevention through an ANC is always better than litigation.
On divorce, the joint estate is divided equally — 50/50. Each spouse receives half of the net value of the joint estate (total assets minus total debts), regardless of who contributed what during the marriage. Divorce — Division of the Joint Estate
| Item | Value |
|---|---|
| Family home | R3,200,000 |
| Spouse A's retirement fund | R1,400,000 |
| Spouse B's savings | R600,000 |
| Vehicles (combined) | R800,000 |
| Outstanding bond | (R1,200,000) |
| Credit card debt | (R80,000) |
| Net joint estate | R4,720,000 |
Each spouse receives: R4,720,000 ÷ 2 = R2,360,000 — regardless of who earned what, who brought what into the marriage, or who incurred the debts.
In some circumstances, the court may order a forfeiture of patrimonial benefits under Section 9(1) of the Divorce Act. This means the court can order that one spouse forfeit some or all of the benefits they would otherwise receive from the marriage. This is typically ordered when one spouse was guilty of misconduct, when the marriage was of short duration, or when one spouse would be unduly benefited by the equal division, given their conduct during the marriage.
Spouses are free to negotiate a settlement agreement (consent paper) that divides the joint estate on terms they both agree to — this does not have to be an exact 50/50 split. The settlement agreement is made an order of the court when the decree of divorce is granted. Many divorces are resolved through negotiation or mediation rather than contested litigation.
When one spouse dies in a marriage in community of property, the following process applies:
The surviving spouse is entitled to their 50% half-share of the net joint estate. This half belongs to the surviving spouse as of right — it is not an inheritance and is not subject to estate duty.
The remaining 50% forms the deceased's estate and is distributed according to their will (or the Intestate Succession Act if there is no will). The executor must first settle all debts of the deceased estate — including funeral costs and estate duty — before distributing to heirs.
Estate duty is calculated only on the deceased's 50% share, not on the full joint estate. The surviving spouse's half-share is not subject to estate duty. Additionally, any assets bequeathed to the surviving spouse are exempt from estate duty under Section 4(q) of the Estate Duty Act.
Critical limitation on wills: Because each spouse only owns an undivided half-share of the joint estate, you can only bequeath your 50% in your will. You cannot dispose of the entire joint estate — the other 50% belongs to the surviving spouse. Many couples mistakenly draft wills that purport to deal with the entire estate, which creates complications during administration.
Delay in accessing funds: The administration of a deceased estate in community of property is more complex than in a marriage out of community of property. The executor must first determine the full extent of the joint estate, settle all debts, and divide the estate before the surviving spouse can access their share. This can take months, during which the surviving spouse may have limited access to bank accounts and other assets.
| Feature | In Community ★ | With Accrual | Without Accrual |
|---|---|---|---|
| Legal document | None needed (default) | Notarial ANC | Notarial ANC |
| Cost to set up | R0 | R1,950 | R1,950 |
| Asset ownership | One joint estate — 50/50 | Two separate estates | Two separate estates |
| Pre-marital assets | Merge into a joint estate | Remain separate (protected by commencement value) | Remain separate |
| Debt liability | Jointly liable for ALL debts | Individually protected | Individually protected |
| Consent needed | Extensive consent requirements (Section 15) | Full autonomy | Full autonomy |
| Insolvency risk | Both spouses affected | Only the insolvent spouse | Only the insolvent spouse |
| Sharing at divorce | 50/50 of the entire joint estate | Sharing of growth only | No automatic sharing |
| Business protection | None — spouse fully exposed | Full protection during marriage | Full protection |
| Estate on death | Complex — joint estate must be divided first | Simpler — separate estates | Simplest — separate estates |
| Best suited for | Very few couples. High-risk | Most couples | Second marriages, older couples |
If you are already married in community of property and wish to change to a marriage out of community of property (with or without accrual), this is possible — but it requires a court application under Section 21 of the Matrimonial Property Act.
Both spouses must consent to the change. The court must be satisfied of three things:
A Section 21 application is made to the High Court. The process typically involves drafting a founding affidavit explaining the reasons for the change, publishing notice to creditors in the Government Gazette and a local newspaper, allowing creditors a period to object, obtaining a court order authorising the change, and then executing and registering a notarial contract (the postnuptial contract) that establishes the new regime.
A postnuptial contract application typically costs between R15,000 and R25,000 (including legal fees, court fees, and publication costs) and takes 3 to 5 months to complete. This is significantly more expensive than an antenuptial contract, which costs R1,950 and is completed in days.
The lesson: It is always cheaper, faster, and simpler to sign an antenuptial contract before the wedding than to change your regime afterwards. If you are engaged and reading this page, you still have time to make the right choice. As of 3 April 2024, the Judicial Matters Amendment Act 15 of 2023 amended Section 21, streamlining certain aspects of the postnuptial process. However, the core requirements of a court application and creditor notification remain in place.
