Understanding what it means to be married out of community of property with accrual is crucial for couples planning their future in South Africa. This marriage regime offers a unique balance between financial independence and fair asset sharing, but it comes with specific legal and practical considerations.
What does it mean to be married out of community of property with accrual?
In South Africa, being married out of community of property with accrual means that each spouse retains ownership and control of the assets they brought into the marriage. However, any increase in their respective estates during the course of the marriage is shared equally upon divorce or death. This system protects spouses from each other’s debts while still allowing both parties to benefit from the growth of their combined wealth over time. It’s a popular choice among couples who want fairness without full financial merging.
How is the accrual calculated in this marriage regime?
The accrual is calculated by subtracting each spouse’s estate value at the start of the marriage from its value at the end. This is known as determining the “net increase.” The spouse whose estate has grown less has a claim for half the difference in value between their accrual and their partner’s. For example, if Spouse A’s estate grew by R1 million and Spouse B’s by R400,000, Spouse B can claim R300,000 from Spouse A.
| Spouse | Value at Start | Value at End | Accrual |
|---|---|---|---|
| Spouse A | R200,000 | R1,200,000 | R1,000,000 |
| Spouse B | R100,000 | R500,000 | R400,000 |
Claim = (1,000,000 – 400,000) ÷ 2 = R300,000
What assets are excluded from the accrual?
Certain assets are automatically excluded from the accrual calculation. These include inheritances, donations received from third parties, and assets expressly excluded in the antenuptial contract. For example, if you inherit a home or receive a gift from a relative during your marriage, its value is not counted in your estate growth. It’s also possible to exclude specific assets—like a business or investment portfolio—when drafting the antenuptial contract, which must be registered before the wedding.
Why do couples choose this regime over others?
Many couples in South Africa choose to marry out of community of property with accrual because it offers a middle ground. It allows financial independence during the marriage but ensures fairness should the relationship end. This is especially useful if one spouse expects to pause their career for family reasons or if one enters the marriage with significantly more assets. It also provides legal protection from the other spouse’s debts—a feature not available when married in community of property.
How does this affect divorce proceedings?
In the event of divorce, each spouse retains the assets they owned before marriage, and the court calculates the accrual to determine if one spouse owes the other a portion of their estate’s growth. This process requires detailed financial records and valuations. Disputes can arise over what counts as an asset or liability, which is why legal support from a family law attorney is often essential. The accrual claim becomes part of the divorce settlement and must be carefully negotiated or litigated.
Is it possible to change from accrual to no accrual after marriage?
No, you cannot simply change from out of community of property with accrual to without accrual after the marriage is concluded. Changing your marital regime in South Africa requires a court application and mutual agreement between spouses. The process is costly, time-consuming, and requires solid justification. That’s why it’s important to consult an attorney before getting married to ensure your chosen regime aligns with your long-term goals.
How does this impact estate planning?
Estate planning becomes especially important when you are married out of community of property with accrual. On death, the surviving spouse has a claim to half of the difference in accrual values, which must be considered in the administration of the deceased estate. This can impact heirs and the distribution of assets, especially if wills are not properly aligned with the accrual claim. To avoid complications, it’s best to consult an estate planning attorney to ensure all legal and financial elements are coordinated.
What role does an antenuptial contract play?
The antenuptial contract (ANC) is the legal foundation of a marriage out of community of property with accrual. It must be signed before marriage and registered with the Deeds Office. The ANC outlines which assets are excluded from accrual and ensures both spouses understand their financial rights and obligations. Without an ANC, the marriage defaults to in community of property, which merges all assets and liabilities. To ensure your ANC is properly drafted and tailored to your needs, you should speak to a contracts attorney.
What happens when one spouse has significant debt?
One of the key advantages of being married out of community of property with accrual is debt protection. If one spouse incurs significant debt, creditors cannot go after the other spouse’s estate. This is particularly valuable for entrepreneurs or professionals who may take on business risks. The accrual system ensures that only the growth of the estates is shared, not the liabilities, making it a safer legal structure for couples with uneven financial exposure.
Where can I get legal help to draft or understand an accrual contract?
If you’re considering this marriage regime or need legal advice on your existing antenuptial contract, it’s essential to consult a legal professional experienced in matrimonial law. At Andrew Scott Attorneys, we offer expert guidance in drafting ANC contracts and advising on all aspects of being married out of community of property with accrual. You can also explore our range of services related to litigation, conveyancing, and debt recovery.
