Family Law > Marriage > The Rules of Civil Marriage > Marriages out of Community of Property with an Ante-Nuptial Contract
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Marriages out of Community of Property with an Ante-Nuptial Contract

Before they marry two people can make an agreement called an ante-nuptial contract. Usually this agreement excludes (or cuts out) community of property. This means the husband and wife each own and control their own things – they have separate estates.

Under the Matrimonial Property Act of 1984 the accrual system automatically applies to their marriage, UNLESS they agree in their ante-nuptial contract that they do not want the accrual system.

‘Accrual’ means increase. The accrual system recognises that during a marriage the husband and wife keep on adding to their joint property. For example, They may add to their property by both working and bringing money into the marriage. Or one spouse may add indirectly by staying home and looking after the home and children so that they do not need to employ someone to do that. The accrual system allows both partners to benefit from the growth to either of their property during the marriage.

While the marriage lasts, the husband controls his own separate estate and the wife controls hers. But if they divorce or when one spouse dies, any increase in the value of both estates gets shared equally by the partners. If the couple chose not to have the accrual system, in their divorce the partners keep their own things and are responsible for their own debts.

This is how the accrual system works:
  • Certain things are excluded from the accrual system, such as inheritances and gifts.
  • At the beginning of the marriage the property of each spouse is valued.
  • During the marriage each spouse controls and adds to his or her own property.
  • When the marriage ends through death or divorce, the value of each spouse’s property before the marriage gets compared with the value at the end of the marriage. This shows the increase in each spouse’s property. (Inflation is taken into account.)
  • Take the smaller increase in value away from the larger increase in value. Divide this amount in half. The spouse with the smaller increase in value has a claim against the other spouse for half of this difference so that they end up with the same accrual.

Example of Accrual System

Value at end of marriageR30 000R4 000
Value at beginning of marriageR10 000R2 000
IncreaseR20 000R2 000

In this example, the husband’s estate has grown by R18 000 more than the wife’s estate during the marriage (i.e. R20 000 – R2 000). She has a claim against him for half of this difference i.e. R9 000 so that they each end up with an accrual of R11 000.

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