Martial Regimes in South Africa Explained

What is a Marital Regime?

The martial regime that applies to your marriage will determine what happens to your and your spouses respective assets if the marriage is dissolved by divorce.

In South Africa, there are 3 ways in which you can get married which are:

1. Married in community of property

2. Married out of community of property - with accrual

3. Married out of community of property - without accrual

What is a Marriage In Community of Property?

This is the default marital regime - this means that in the absence of entering into an Ante Nuptial Contract or “ANC”, you and your spouse will be married in community of property.

After your marriage, a joint estate is created and the assets and liabilities of both spouses become part of the joint estate and every asset will be jointly owned by both parties (irrespective if acquire before or during the marriage).

What is a Marriage Out of Community of Property?

This means that before you get married, both you and your spouse enter into an ANC which specifically states that your marriage with be “out of community of property”. Once you have elected to get married out of community of property, you will need to make a second election, namely are you can be married with accrual or without accrual.

What does having Accrual Apply Mean?

If accrual applies, a joint estate of the spouses is created at the time that the marriage is entered into and from thereafter, what each spouse earns during the marriage belongs to the joint estate. This means that all your respective assets need to be disclosed prior to getting married and listed in your ANC.

What does Accrual mean in a Marriage?

Accrual is a term used to refer to the net increase in value of each spouse's estate since the date of marriage.

This in effect means what was yours before the marriage remains yours, but that what you have earned during the marriage belongs to the joint estate i.e. both of you.

What is the Purpose of Accrual?

Accrual is a way to ensure that both spouses in a marriage are entitled to their fair share of the estate if the marriage comes to an end.

Calculating the Accrual on Divorce.

When getting divorced and you are married out of community with accrual, it means that the value of the joint estate needs to be calculated which in turn requires that each spouse has to make a full financial disclosure so that the accrual of their estate can be determined.

What Assets excluded from the Accrual?

Assets that are not taken into account when determining the accrual (are not included in the net value of the estate):

• Any asset specifically excluded from the accrual in terms of the ANC and any other asset that may have been acquired by virtue of his/her possession or former possession of such asset.

• Any inheritance, legacy, trust or donation received by a spouse during the marriage from any third party and any other asset that the spouse has acquired by virtue of his/her possession or former possession of the inheritance, legacy, trust or donation, unless the spouses have agreed otherwise in their ANC or the testator/trix or donor has stipulated otherwise.

• Any donation between the spouses.

• Any amount that accrued to a spouse by way of damages (e.g. slander), other than damages for patrimonial loss or the proceeds of an insurance policy in respect of a dread disease.

Disputes Around Calculation of the Accrual

It sometimes happens that a dispute arises around the calculation of one or both spouses accural. Disputes of this nature can arise when there is a dispute regarding which assets should or should not form part of a spouses estate.

Sometimes a spouse attempts to hide assets from their estate by transferring these assets to a trust. The reason being is that trust assets or property do not form part of a beneficiary’s personal estates.

If you would like to find out more or have a dispute concerning the calculation of the accrual, our Family Law Attorneys have extensive experience dealing with disputes concerning the accrual.