A marriage out of community of property with the accrual system, introduced by Chapter 1 of the Matrimonial Property Act 88 of 1984, is the most widely chosen regime in modern South African civil marriages with an antenuptial contract. It keeps each spouse’s estate separate during the marriage, but provides for the growth of each estate to be shared between the spouses at the end of the marriage.
How accrual works in outline
Each spouse retains a separate estate, controlled by the spouse who holds the assets, free of the consent requirements of section 15. At the end of the marriage — by death or by divorce — the accrual of each spouse’s estate is calculated. The accrual is the increase in the value of the spouse’s estate from the date the marriage came under the accrual system to the date the marriage ends, adjusted for inflation and excluding certain items.
The spouse whose estate has shown the smaller accrual has a claim against the spouse whose estate has shown the larger accrual, equal to half the difference between the two accruals.
Certain items are excluded from the accrual calculation. The Matrimonial Property Act provides for the exclusion of:
- assets specifically excluded in the antenuptial contract (or, in this context, the postnuptial contract);
- damages awarded for non-patrimonial loss;
- inheritances, legacies and donations received during the marriage (unless the parties agree otherwise);
- assets that replace any of the above.
Where the parties wish the accrual to commence at a value other than zero, the antenuptial or postnuptial contract may declare an initial value for each spouse’s estate.
Key features
- Separate estates during the marriage. Each spouse controls his or her own estate.
- No section 15 consent friction — except where the parties contractually choose to introduce specific consent requirements (most do not).
- Sharing of growth at the end of the marriage. This is the feature that distinguishes accrual from no-accrual.
- Continuing protection from joint sequestration. Sequestration of one spouse does not draw in the other.
When this regime suits
- Couples who want each spouse to control his or her own affairs during the marriage, while still recognising that the marriage represents a partnership in which growth is shared.
- Couples where one spouse is likely to take on the primary household role and the other is likely to be the primary earner. The accrual claim provides a recognised, formula-based mechanism for sharing the growth produced.
- Couples who want flexibility — for example, by specifically excluding certain assets (a family business; an inherited family farm) from the accrual calculation.
Can we change to this regime after marriage?
Yes — by way of a section 21 application. The proposed notarial postnuptial contract excludes community of property and provides for the accrual system to apply, with an initial value declared for each spouse’s estate and any excluded assets identified.