A marriage out of community of property without the accrual system is one in which each spouse retains a fully separate estate, both during the marriage and at the end of the marriage. There is no joint estate. There is no sharing of growth. Each spouse owns what is in his or her own name, and is responsible for his or her own debts.
This regime applies only where the spouses concluded an antenuptial contract before the marriage that excluded both the community of property and the accrual system, and where that contract was registered at the Deeds Office within the period prescribed by section 87 of the Deeds Registries Act 47 of 1937.
Key features
- Separate estates. Each spouse owns and controls his or her own assets and liabilities.
- No section 15 consent friction. Each spouse can deal with his or her own estate without obtaining the other’s consent.
- No sharing at the end of the marriage. At divorce or on death, neither spouse has a claim against the other’s estate by virtue of the marriage itself.
- No joint sequestration. The sequestration of one spouse does not draw in the other spouse’s estate.
When this regime suits
- Where both spouses have, or expect to have, substantial estates that they wish to keep entirely separate.
- Where one or both spouses are commercially active and the absence of section 15 consent friction is valuable.
- Where the parties’ estate plans are independent — for example, where one or both spouses have children from a prior relationship and wish to leave assets to those children without limitation.
- Where the parties accept that there will be no patrimonial sharing at the end of the marriage.
When this regime does not suit
The principal drawback is that there is no sharing of growth. A spouse who has supported the household at the cost of his or her own earning capacity — for example, by taking time out of the workforce to raise children — has no claim against the other spouse’s estate when the marriage ends. For couples who want some form of sharing without the consent friction of community of property, the out-of-community-with-accrual regime is usually more appropriate.
Can we change to this regime after marriage?
Yes — by way of a section 21 application. The proposed notarial postnuptial contract excludes both community of property and the accrual system.