In South African law there are three different types of matrimonial property regimes.

The first one, being the default position, is a marriage in community of property, the second is a marriage out of community of property and the third is a marriage out of community of property which includes the operation of the accrual system. If community of property is not specifically excluded, the marriage will be in community of property.

In a marriage concluded in a community of property, the parties have a joint estate and each owns a one half share in the estate. All assets are liabilities are equally shared. No antenuptial contract has to be concluded in this instance, ie without a contract this is the default regime. There are however a few exceptions where certain assets do not form part of the joint estate.

In a marriage out of community of property the parties have elected to keep their respective estates separate and whatever assets and liabilities they individually had before the marriage remain part of their separate estates and whatever assets they acquire and liabilities they incur during the marriage is part of their separate estates. In other words, the parties do not share profit and loss. The parties will need to enter into an antenuptial contract to specifically exclude community of property.

The parties may choose to get married out of community of property but to have such marriage subject to the accrual system. In this instance the parties will need to enter into an antenuptial contract however in this instance the antenuptial contract will need to be prepared in a certain way. At the dissolution of marriage, the net value of each estate is calculated by taking the net end value less the net initial value (as adjusted by CPI) and the larger estate is obliged to transfer one half of the difference to the smaller estate. This is known as the accrual. Certain assets are excluded when calculating the accrual.

An Antenuptial Contract must be signed before the parties are married and must be registered at the deeds office within 3 months of the signing thereof. Should this not ocurr, an application may be brought in the High Court for leave to conclude a post-nuptial contract. Notice of such an application must be given to the parties’ creditors.

Each of the regimes has its own benefits and drawbacks and should one need help deciding which of these regimes is more suitable to your needs, you should consult an experienced attorney to provide you with advice.

Should you require advice on concluding an antenuptial contract please call us on 021 424 4599 or email info@thomsonwilks.co.za.

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28 April 2023

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