In or Out of Community of Property? South Africa's Marriage Regimes, Explained

Why Your Marriage Regime Matters

In South Africa, every civil marriage falls under one of three matrimonial property regimes. The regime decides who owns what during the marriage, who is liable for whose debts, what each spouse can do without the other's consent, and, most importantly, how property is divided when the marriage ends, whether by divorce or by death.

The choice is made before the wedding. Marry without signing an antenuptial contract, and the law chooses for you: you are married in community of property. Sign an antenuptial contract first, and you are married out of community of property, either with or without the accrual system. The governing statute is the Matrimonial Property Act 88 of 1984, and the dividing date of 1 November 1984, when that Act came into force, still matters today, as the Constitutional Court ruling discussed below shows.

Married in Community of Property

In community of property, the two spouses have one joint estate. Everything each spouse owned before the marriage, and everything either of them acquires during it, falls into that single estate. Each spouse holds an equal, undivided half share of everything: the house, the cars, the savings, and also the debts.

How it works during the marriage

• Assets are shared. Salaries, property, investments and possessions belong to the joint estate, regardless of whose name they are in.
• Debts are shared too. A debt incurred by one spouse binds the joint estate. If one spouse runs up credit card debt or stands surety and it goes wrong, the creditor can look to the joint estate, including the other spouse's half.
• Consent rules apply. Under section 15 of the Matrimonial Property Act, certain transactions need the other spouse's consent, in some cases in writing with witnesses: selling or bonding the family home, withdrawing the other spouse's bank savings, entering into credit agreements, and standing surety, among others.
• Insolvency hits both spouses. If the joint estate is sequestrated, both spouses are affected, because there is only one estate to sequestrate.

In community of property is simple and, in its own way, egalitarian: everything is shared equally, which can protect a spouse who stays home to raise children. Its weakness is the shared debt and the loss of financial independence, since neither spouse can deal freely with major assets.

Out of Community of Property with the Accrual

To marry out of community of property, the couple signs an antenuptial contract before the wedding. For marriages entered into on or after 1 November 1984, the accrual system applies automatically to every antenuptial contract unless the contract expressly excludes it.

The accrual system is a compromise between sharing everything and sharing nothing:

• During the marriage, each spouse has a completely separate estate. Each buys, sells, signs and borrows independently, and each is responsible for their own debts.
• When the marriage ends, by divorce or death, the growth of the two estates is compared. The spouse whose estate grew less during the marriage has a claim against the other for half the difference in growth.

How the accrual is calculated

Each spouse declares a starting value, the commencement value, in the antenuptial contract. At the end of the marriage, each estate's accrual is its final value minus its commencement value, with the commencement value adjusted for inflation using the consumer price index. Certain things are left out of the calculation altogether:

• Inheritances, legacies and donations received during the marriage, unless the antenuptial contract says they must count or the person who left them stipulated otherwise;
• Donations between the spouses themselves;
• Damages for non-patrimonial loss, such as compensation for pain and suffering;
• Assets expressly excluded in the antenuptial contract, and anything acquired with them or in their place.

A simple example: at divorce, after inflation adjustment and exclusions, one spouse's estate grew by R1,000,000 and the other's by R200,000. The difference is R800,000, so the spouse with the smaller growth has an accrual claim of R400,000. The claim only comes into existence when the marriage ends; during the marriage, neither spouse has any right to the other's estate.

Out of Community of Property without the Accrual

A couple can expressly exclude the accrual system in their antenuptial contract. The result is complete separation of property: separate estates during the marriage, separate debts, and, when the marriage ends, each spouse simply keeps their own estate. What is yours stays yours; what is your spouse's stays theirs.

This regime suits some couples well, for example where both spouses are established, financially independent, or protecting business interests or children from earlier marriages. Its hard edge has always been the spouse who contributes to a marriage in ways that never land in their own estate: the spouse who runs the household and raises the children for decades while the other builds a career and an estate, and who could historically walk away from a long marriage with nothing.

The 2023 Constitutional Court Change

That hard edge is exactly what the Constitutional Court addressed in EB v ER (October 2023). Before this ruling, section 7(3) of the Divorce Act allowed a court to order a redistribution of assets, a transfer of part of one spouse's estate to the other where that is just, but only for marriages without accrual entered into before 1 November 1984. Couples married without accrual after that date were excluded, no matter how unfair the outcome.

The Constitutional Court unanimously declared that limitation unconstitutional. The practical effect:

• A spouse married out of community of property without the accrual, including marriages entered into after 1 November 1984, may now ask the divorce court for a redistribution of assets where that would be just, typically because they contributed directly or indirectly to the growth of the other spouse's estate, including through unpaid work in the home.
• In the companion ruling, the same relief was extended to marriages that end through death, not only divorce.

This does not mean assets are automatically shared in these marriages. A redistribution must be claimed and motivated, and the court decides what is just on the facts of each case. But the blanket rule that a without-accrual spouse can never claim anything is gone, and anyone married under this regime, or considering it, should know that. Parliament is expected to amend the legislation to reflect the ruling.

The Antenuptial Contract

An antenuptial contract, often just called an ANC or antenup, is the contract that creates a marriage out of community of property. For it to be valid:

• It must be signed before the wedding, in front of a notary public, a specially admitted attorney;
• It must be registered in the Deeds Office within three months of signature;
• If the accrual is to be excluded, the contract must say so expressly, and if assets or commencement values are to be recorded, they are recorded here.

The cost of a standard antenuptial contract at a notary is modest, typically a few thousand rand, which is trivial compared to the cost of being in the wrong regime later. Timing is everything: after the wedding, a couple cannot simply sign an ANC. Their only route is a formal High Court application, covered below.

What Each Regime Means in a Divorce

The marriage regime is the first question every divorce attorney asks, because it sets the starting point for the entire financial side of the divorce procedure:

• In community of property: the joint estate is divided equally. A court can order a forfeiture of patrimonial benefits under section 9 of the Divorce Act in limited cases, but the default is a 50/50 division of everything, assets and debts alike.
• Out of community with accrual: each spouse keeps their own estate, and the spouse with the smaller accrual has a claim for half the difference in growth, calculated as explained above.
• Out of community without accrual: each spouse keeps their own estate, subject now to the possibility of a redistribution claim following EB v ER.

Pension interests follow the regime too: in community and accrual marriages, a spouse's pension interest is treated as part of the estate for division purposes under the Divorce Act, and the wording of the order matters enormously, which is one of the most common and expensive mistakes in DIY divorces. How these consequences are recorded, and what a divorce actually costs under each regime, is covered in our cost of divorce guide and our uncontested divorce guide, and the agreement itself is the divorce settlement agreement.

What Each Regime Means When a Spouse Dies

The regime is just as important at death as at divorce:

• In community of property: the surviving spouse automatically owns half of the joint estate. Only the deceased's half falls into their deceased estate and is distributed in terms of their will, or by intestate succession if there is no will.
• With accrual: the accrual claim is calculated between the deceased estate and the survivor, in whichever direction it runs, before the will is given effect.
• Without accrual: the estates remain separate, though after EB v ER a redistribution may now also be sought where such a marriage is dissolved by death. A surviving spouse who cannot support themselves may in addition have a maintenance claim against the estate under the Maintenance of Surviving Spouses Act.

Your regime and your will need to work together. If your heir is married in community of property, their inheritance falls into their joint estate unless your will excludes it, which is one of several reasons to have a will professionally drafted. Our guide on last wills and testaments in South Africa covers this in detail.

Muslim and Customary Marriages

Two developments matter here. First, customary marriages under the Recognition of Customary Marriages Act 120 of 1998: a monogamous customary marriage is in community of property by default, unless the couple concludes an antenuptial contract, so everything above about community of property applies.

Second, Muslim marriages. Following the Constitutional Court's 2022 ruling in the Women's Legal Centre Trust case, the Divorce Amendment Act, signed into law in May 2024, formally recognises Muslim marriages for purposes of divorce law. Spouses in Muslim marriages now have access to the divorce courts, including protection of minor children's interests and the possibility of redistribution of assets on dissolution. This closed a gap that had left spouses, most often women, without legal remedies when such marriages ended.

Changing Your Regime After the Wedding

Married couples are not locked in forever, but the escape route is formal. Under section 21(1) of the Matrimonial Property Act, spouses may jointly apply to the High Court for leave to change their matrimonial property regime. The court will want to see:

• Sound reasons for the change;
• Notice to creditors, usually by publication and written notice, since creditors' rights are affected;
• That no one is prejudiced by the change.

Both spouses must apply together, and the costs, court application, notices and a new notarial contract, run well beyond what an antenuptial contract would have cost before the wedding. It is a workable remedy, but a far more expensive one.

Common Misconceptions

• "We have lived together for years, so we are basically married." South African law has no common-law marriage. Living together, for however long, creates no matrimonial property regime and no automatic claims, no matter what you have heard. Only limited remedies, such as proving a universal partnership, are available, and they are difficult.
• "Out of community means my spouse can never claim anything." That was already untrue for pre-1984 marriages, and since EB v ER it is no longer true for post-1984 marriages without accrual either. Spousal maintenance is also a separate question from the property regime.
• "The accrual means we share everything." No. You share only the growth of the estates during the marriage, after exclusions, and only when the marriage ends.
• "We can sign the antenuptial contract after the honeymoon." No. Before the wedding, before a notary, registered within three months, or the default of in community of property applies and only the High Court can undo it.
• "My inheritance will be shared if we divorce." Under the accrual system, inheritances are excluded unless your antenuptial contract says otherwise. In community of property, however, an inheritance does fall into the joint estate unless the will excludes it.

Frequently Asked Questions

What does married in community of property mean?

It means the spouses have one joint estate. Everything either spouse owned before the marriage and everything acquired during it falls into that single estate, in which each spouse has an equal, undivided half share. Debts are shared in the same way. This is the automatic regime in South Africa: if you marry without signing an antenuptial contract first, you are married in community of property.

What is the accrual system?

The accrual system applies to marriages out of community of property unless the antenuptial contract expressly excludes it. Each spouse keeps their own separate estate during the marriage, but when the marriage ends, the growth of the two estates is compared, and the spouse whose estate grew less has a claim for half the difference. Inheritances, legacies and donations are excluded unless agreed otherwise, and starting values are adjusted for inflation.

What happens if I marry without an antenuptial contract?

You are automatically married in community of property. A valid antenuptial contract must be signed before a notary public before the wedding and registered in the Deeds Office within three months. After the wedding it is too late to simply sign one: changing your regime then requires a joint application to the High Court, which is far more expensive.

Can we change our marriage regime after the wedding?

Yes, but only through a joint application to the High Court under section 21(1) of the Matrimonial Property Act. The spouses must show sound reasons for the change, give notice to creditors, and satisfy the court that no one will be prejudiced. It is possible, but it is a formal court application and costs considerably more than signing an antenuptial contract before the wedding.

If we are married out of community without accrual, can my spouse claim anything in a divorce?

Possibly, yes. Since the Constitutional Court's ruling in EB v ER in October 2023, a spouse married out of community of property without accrual, including marriages entered into after 1 November 1984, may ask the divorce court for a redistribution of assets where that would be just, for example where one spouse contributed to the other's estate through unpaid work in the home. The same now applies when such a marriage ends through death. Each case depends on its own facts.

Does marrying out of community of property protect me from my spouse's debts?

Largely, yes. Out of community of property, each spouse has a separate estate, and creditors of one spouse generally cannot attach the other spouse's assets. In community of property the opposite is true: debts bind the joint estate, and if one spouse is sequestrated, the joint estate, including the other spouse's half, is sequestrated with it.