In community of property
No ANC signed. A single joint estate: both spouses own an undivided half‑share; assets and debts are pooled; equal control with certain consent rules.
Matrimonial Property Regimes in South Africa
South African marriages are primarily governed by the Matrimonial Property Act 88 of 1984. There are three main regimes: in community of property, out of community of property without accrual, and out of community of property with accrual. Couples can choose an alternative to the default by signing an antenuptial contract (ANC) before marriage.
Out of community (without accrual)
Two separate estates. Each spouse keeps their own assets and liabilities; no sharing of gains on divorce.
Out of community (with accrual)
Separate estates during marriage, but on dissolution spouses share the net increase (accrual) of their estates, often 50/50 unless ANC provides otherwise.
1) Marriage in Community of Property
- Default option: Applies automatically if no antenuptial contract is signed.
- Joint estate: Assets and liabilities combine into one joint estate.
- Equal ownership: Each spouse owns an undivided half‑share.
- Equal control: Both spouses have management and disposal rights (with legal consent requirements for certain transactions).
2) Marriage Out of Community of Property Without Accrual
- Separate estates: Each spouse’s assets and liabilities remain separate throughout the marriage.
- No sharing of gains: There is no division of increases in estate value upon divorce.
3) Marriage Out of Community of Property With Accrual
- Separate estates: As above, each spouse retains a separate estate during marriage.
- Accrual system: On divorce or death, the net increase in each estate (since marriage) is calculated.
- Shared gains: The accrual is shared—commonly equally—subject to any different split provided in the ANC.
- Typical exclusions: Inheritances, donations, and damages for non‑patrimonial loss are usually excluded from accrual (unless expressly included).
How to Choose Your Regime
- Antenuptial Contract (ANC): To opt out of the default, sign and register an ANC before the marriage ceremony.
- Postnuptial change: In certain cases, spouses may apply to court to change their matrimonial property regime. Courts generally require proof that the change won’t prejudice creditors or any other party.
This explainer is a general overview and not legal advice. Consult a South African attorney for guidance on your situation.
Compare at a Glance
| Feature | In community | Out (no accrual) | Out (with accrual) |
|---|---|---|---|
| ANC required | No (default) | Yes | Yes |
| Ownership during marriage | Single joint estate | Separate estates | Separate estates |
| Debt liability | Shared (joint estate) | Separate | Separate |
| Share in increases on divorce | N/A (joint estate) | No sharing | Accrual shared (often 50/50 or as per ANC) |
| Typical exclusions | — | — | Inheritances, donations, non‑patrimonial damages (unless ANC provides otherwise) |