Every marriage in South Africa is governed by one of three matrimonial property regimes:
- In community of property — the default, applying to any civil marriage entered into without an antenuptial contract;
- Out of community of property without the accrual system — each spouse retains a separate estate, with no sharing of growth at the end of the marriage; or
- Out of community of property with the accrual system — each spouse retains a separate estate during the marriage, with the growth shared between them at the end of the marriage in accordance with Chapter 1 of the Matrimonial Property Act 88 of 1984.
The regime applying to a marriage is fixed at the date of marriage, by the operation of the default rule or by an antenuptial contract signed and registered in time. It does not change automatically. To change the regime after marriage, the spouses must apply jointly to the High Court under section 21 of the Matrimonial Property Act 88 of 1984.
This page summarises each regime. Each links through to its own dedicated page with more detail.
| Feature | In Community of Property | OOC Without Accrual | OOC With Accrual |
|---|---|---|---|
| Default if no ANC? | Yes | No | No |
| Separate estates? | No — one joint estate | Yes | Yes |
| Sharing of growth? | n/a (estates already joined) | No | Yes (Chapter 1 MPA) |
| Section 15 consent friction? | High | None | Low |
| Effect of sequestration of one spouse | Joint estate sequestrated | One spouse’s estate only | One spouse’s estate only |
| Estate planning | Constrained | Flexible | Flexible, with accrual at death |
| Typical use | Marriages without an ANC | Couples wanting full separation | Couples wanting separation + future sharing |
Read more
- In Community of Property →
- Out of Community of Property Without Accrual →
- Out of Community of Property With Accrual →
Changing regime after marriage
To change from one regime to another after marriage, a joint application to the High Court under section 21 of the Matrimonial Property Act is required. See Change of Matrimonial Property Regime and Section 21 Application.
If you and your spouse would like our office to assess whether the section 21 process is appropriate, complete the online application.