MARRIAGE IN COMMUNITY OF PROPERTY

This applies automatically where parties do not conclude an Ante-Nuptial Contract (ANC). 

All assets and liabilities of spouses married in community, whether acquired before or during the marriage, fall within one joint estate.

MARRIAGE OUT OF COMMUNITY OF PROPERTY

This is achieved by concluding an ANC. 

Each party has a completely separate estate. 

Each spouse has and retains absolute independence of contractual capacity, and each party’s assets are protected against claims by the other party’s creditors. 

Each is liable for his or her own debt. 

There is no provision for sharing.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL

SYSTEM

After the Matrimonial Property Act 88 of 1984 the accrual system was introduced. 

Each spouse retains their own estate and may accumulate assets and incur liabilities without interference from or

assistance of the other. 

The estate of each party is determinable separately from that of the other party. 

At dissolution of the marriage, by either divorce or death, each party’s estate is calculated by

determining all assets, determining all liabilities, subtracting liabilities from assets, and arriving at a

net asset value.

It is possible to provide for exclusions from this sharing which needs to be explained by the attorney.

An ANC must be signed before the marriage ceremony is concluded and in the presence of a notary and two competent witnesses. 

The notary will register the contract in the local registry of deeds. 

The ANC must be registered within 3 months of the date of the marriage at the Deeds Office.