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When you get married, you’re not just sharing a life—you’re also entering a legal and financial arrangement. In South Africa, the law offers several matrimonial property regimes, each with different implications for how assets are owned and divided.
One of the most important and often misunderstood systems is the accrual system, which strikes a balance between protecting individual property and ensuring fairness if the marriage ends—whether through divorce or death.
Whether you're planning to get married, already married with an antenuptial contract, or thinking about divorce, understanding how the accrual system works is essential. It affects how your estate grows, how your partner’s financial position compares to yours, and what you're legally entitled to at the end of the relationship.
South African marriage law recognises three key matrimonial property regimes. Each determines how assets are owned during the marriage and how they are divided if the relationship ends.
This is the default if no antenuptial contract is signed before marriage. All assets and debts—whether acquired before or during the marriage—are pooled into a single joint estate. Both spouses have equal ownership, and both are equally liable for debts.
Implications:
In this regime, each spouse retains full ownership of their assets and debts, both during the marriage and after divorce. There is no financial sharing unless explicitly agreed.
This is where the accrual system comes in. It allows each spouse to keep their estate separate during the marriage, but ensures that any growth in value is shared fairly if the marriage ends. It’s often viewed as the most balanced option—especially when one partner earns or accumulates more wealth than the other.
The accrual system only applies if clearly stated in an antenuptial contract signed before the marriage.
The accrual system is a matrimonial property regime designed to create fairness between spouses. It allows each person to retain control over their own estate during the marriage, while still recognising that both may contribute—directly or indirectly—to the growth of shared wealth.
In simple terms, it means that when the marriage ends (whether through divorce or death), the difference in how much each estate grew is calculated. The spouse whose estate grew less is entitled to half the difference in value.
The accrual system only applies when the couple:
This system is often chosen by couples who want:
It recognises that a partner who earned less may have contributed in other valuable ways—such as caring for children or managing the household.
Understanding how accrual is calculated is key to knowing what you're entitled to—or what you may owe—if the marriage ends. It’s not based on what you own at the start, but on how much your estate grows during the marriage.
At the start of the marriage, each spouse should declare the value of their estate—known as the commencement value. This is typically included in the antenuptial contract to create clarity and avoid disputes later.
However, if no value was recorded in the contract, it does not mean the value is permanently zero. The law simply assumes a starting value of zero unless proven otherwise. In such cases, the spouse can still submit independent proof—such as bank records, property valuations, or financial statements—to establish what their estate was worth at the time of marriage.
These values are later adjusted for inflation, so that a fair comparison can be made when calculating growth.
At the point of divorce or death, the current value of each estate is calculated.
This includes assets like:
Liabilities are deducted to establish the net value of each estate.
The accrual is the difference between:
The spouse with the smaller accrual is entitled to half of the difference between their accrual and that of the other spouse.
Example
Certain assets don’t count toward accrual:
When a couple married with the accrual system divorces, the difference in estate growth becomes a financial claim—often one of the most contested aspects of the separation.
The accrual claim is not automatic. The spouse whose estate grew less must formally claim their share during the divorce proceedings. This is usually included in the divorce summons or agreed on during settlement negotiations.
If no claim is made, and the divorce is finalised without it, the right to claim accrual is lost.
The process begins by:
This calculation can become complex, particularly when businesses, trusts, or offshore assets are involved. Accurate valuation is essential.
Divorcing under the accrual system involves more than simple asset division—it requires a structured legal and financial process to ensure fairness and accuracy.
While the accrual system offers a balanced approach to financial fairness in marriage, it does not apply automatically—and there are specific scenarios where it is either excluded or unavailable altogether.
If a couple marries without signing an antenuptial contract, they are automatically married in community of property. In this case, the accrual system is irrelevant because all assets and debts fall into a joint estate from the outset.
Couples can choose to marry out of community of property without accrual. This must be clearly stated in the antenuptial contract.
In this case:
This option is often used in second marriages, high-net-worth relationships, or when parties want strict asset separation.
If the antenuptial contract:
…then the regime may be disputed during divorce, leading to delays or uncertainty. The court may need to interpret the contract and apply what it believes to be fair and enforceable.
In all cases, clarity and proper legal drafting at the outset is essential.
An antenuptial contract (ANC) isn’t just a document for the wealthy or the overly cautious. In South African law, it’s the only way to tailor your marriage to fit your financial goals and protect your estate—whether you’re entering your first marriage, remarrying, or safeguarding a business or inheritance.
To be married out of community of property with accrual, an antenuptial contract is essential. Without it, you will default to in community of property, where everything—assets and liabilities—is shared.
Your ANC allows you to:
These oversights can result in expensive disputes during divorce or estate administration. A well-drafted ANC removes ambiguity and gives both spouses confidence about their financial future.
Marriage is a long-term commitment—and sometimes, couples find that the property regime they chose before saying “I do” no longer suits their needs. Fortunately, South African law allows spouses to apply to change their matrimonial property system, but it’s a process that must be handled with care.
You can apply to change your marital regime if:
This is commonly done when couples married in community of property wish to move to out of community with accrual to separate finances while still sharing future growth.
The process involves:
Because it involves court oversight, this is not a quick administrative change—it’s a formal legal process that must be carefully managed.
Given the complexity and the potential consequences, legal guidance is strongly recommended. The court will only grant the application if satisfied that:
A family law attorney can ensure that your application is properly prepared, your financial disclosures are complete, and your contract is compliant.
Whether you’re preparing for marriage or dealing with its breakdown, the legal structure behind your union has long-term consequences. The accrual system is one of the most practical ways to promote fairness, but it only works if it’s understood, applied correctly, and clearly documented.
At Van Deventer and Van Deventer Inc., we help couples and individuals make informed decisions about:
We work with you to create agreements that protect your interests, reflect your intentions, and stand up in court—if it ever comes to that. And if you’re already married or facing divorce, we can help you understand exactly where you stand and what your rights are.
If you need clear legal support before, during, or after marriage, we’re ready to guide you.
Contact us.
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