What does it mean to be married out of community of property without accrual?

If you and your partner marry “out of community of property”, it means that you keep your estates separate, as against marrying “in community of property”, where your estates are combined. For the former, you need to sign an antenuptial contract before tying the knot.

There are two types of antenuptial agreements:

1. Out of community without accrual
   You can agree to the ongoing independence of your estates – you remain in the financial position you were in before getting married.
   
   
2. Out of community with accrual
   You keep your estates separate but agree to share in assets acquired during the marriage – this is known as the accrual system.

The first type of agreement, “marriage out of community of property without accrual”, which is discussed here, is suitable in a relationship where each partner has an independent source of income and is financially self-sufficient.

How is one married out of community of property?

In South Africa, civil marriages are, by default, in community of property. If you and your partner wish to marry out of community of property (see “Under what marital property regime am I married?”), you need to put it in writing in the form of an antenuptial contract, which is then registered at the Deeds Office. This must be done through a specialised attorney known as a notary public.

The default position for an antenuptial contract is to include accrual. If the contract is to exclude accrual, it must expressly state that each party agrees to the following:

• There shall be no community of property and no community of profit and loss between them in respect of their marriage; and
  
  
• The accrual system referred to in Chapter 1 of the Matrimonial Property Act shall not apply to their intended marriage.

What happens with my existing property?

You keep what you already have and what you acquire in your name during the marriage, and your spouse does the same.

What happens with any debts we have?

You are each solely responsible for your debts. If, for example, your partner owes money, his or her creditors cannot go after you.

What are my obligations to my partner?

Under this type of agreement, because you each have a separate estate, property acquired or sold by you during the marriage does not require input or consent from your partner, as it would if you were married in community of property. Spousal support obligations, common to all marital property regimes, still hold – spouses owe a duty of support to each other, even in out-of-community marriages.

What happens if we get divorced?

Of the three marital property regimes, this is typically the least complicated to conclude on divorce. There is no splitting of assets because there has been no sharing of assets. Unless a divorce agreement says otherwise, the two parties go their own ways with their estates intact.

However, there is an important exception to this general principle. Under this regime a divorcing spouse may approach the courts for a redistribution order as compensation for non-financial contributions to the marriage that indirectly enriched the other party. This particularly applies to spouses who stayed at home to attend to housekeeping and bring up children.

Until recently, the provision in the Divorce Act allowing for a judge’s discretion on this matter applied only to spouses married out of community of property before 1984, when the accrual system was introduced. However, in 2023 the Constitutional Court ruled that the Divorce Act was unconstitutional in this instance and that the principle should apply to all marriages of this type. 

What are my ongoing obligations to my ex-partner after divorce?

The law in South Africa favours a clean break between divorcing spouses to minimise ongoing financial obligations and give each party the chance to begin their life afresh.

However, the court will make provision for the maintenance of any minor children from the marriage and may order maintenance for a spouse.

Spousal maintenance is not dependent on the couple’s marital regime and is at the discretion of the judge.

What happens when one of us dies?

On the death of you or your partner, the estate of the deceased spouse will be wound up by an executor, according to the instructions in the will. If there is no will, the deceased estate will be distributed according to the law of intestate succession. The surviving spouse’s estate will not be affected.

The surviving spouse may, under the Maintenance of Surviving Spouses Act, claim maintenance against the deceased spouse’s estate if he or she faces financial hardship, particularly if not adequately provided for in the will.

What happens with life insurance benefits on the death of a spouse?

If there are nominated beneficiaries, the money paid out by the insurance company will go directly to those beneficiaries. The surviving spouse will not have a claim on the payout if not named as a beneficiary.

If there are no beneficiaries named on the policy, the payout is made into the deceased estate, which is subject to the terms of the will.

What happens with retirement fund benefits on divorce or death?

On divorce you have no claim on your spouse’s retirement savings, nor your spouse on yours, unless you arrange otherwise in the divorce agreement.

However, this is also subject to a judge granting a redistribution order under the circumstances described above.

On the death of a spouse, the outcome is not dependent on your marital regime. Death benefits in a retirement fund are distributed according to the Pension Funds Act. This  means the fund trustees consider the family who were financially dependent on the deceased as well as any nominated beneficiaries and how to distribute between them.