According to the Matrimonial Property Act 88 of 1984 there are two types of marriage contracts that spouses can choose from in South Africa, namely in community of property and out of community of property.

When people get married it is presumed that they are married in community of property, what this means is that when the marriage is concluded a joint estate comes into existence. The joint estate consists of all the assets and liabilities that the two parties to the marriage contract had before and after entering the marriage. The spouses will at this point have equal control over the joint estate, however, there are statutory exceptions at this point.

Marriage out of community of property is divided into two types of marriage contracts, namely the marriage out of community of property without the accrual system and the marriage out of community of property with the accrual system.

Marriage out of community of property without the accrual system.

For this type of marriage to apply, the spouses sign an ante nuptial agreement before the commencement of the marriage. The parties to the marriage will as a result own their own separate estates, made up of all their assets and liabilities before and after entering the marriage contract. The spouses can control their own estates as they choose.

Marriage out of community of property with the accrual system.

The operation of the Matrimonial Property Act had the effect that marriages in community of property automatically included the accrual system unless the parties to the marriage excluded it. The consequences of this type of marriage are the same as those stipulated in the marriage out community of property without the accrual system.

The accrual system applies when the marriage dissolves either by divorce or death. The effect that the accrual system has is that assets and liabilities accumulated during the marriage must be added together and divided equally.

It is important to specify in this type of marriage contract what assets you own, and that you would like to have them excluded from the proposed accrual. You should also include the value of your existing assets so that this opening balance is subtracted from the total net balance accumulated during the duration of the marriage to determine the accrual amount.

Reference list:

Family law in South Africa

Matrimonial Property Act 88 of 1984