Marriage In Community of Property

Without doing anything else, marriages in South Africa are automatically In Community of Property. This means that everything owned by the parties both before and acquired after the marriage is shared at the end of the marriage, either through divorce or death. Agreements affecting both parties, (eg property sale agreements) are usually in both parties' names and registration takes place in both parties' names including mortgage bonds and other debts.

Marriage Out of Community of Property

If one wants to keep assets acquired before the marriage separate, or keep debts only in the name of the party incurring the debt, it is advisable to get married Out of Community of Property. You do this by signing an Ante-Nuptial or pre-marriage contract. The contract is executed before a Notary Public and is registered thereafter in the Deeds Office. There are two types of Ante-Nuptial Contracts, either Including the Accrual System or Excluding the Accrual system.

The introduction of the Accrual system in the Matrimonial Property Act of 1984 introduced a sharing of assets during the marriage, but allows parties to keep assets separate that were owned before the marriage. You can therefore choose to either keep all assets separate - acquired both before and during the marriage (Exclude Accrual) - or you can keep assets acquired before separate, and share assets acquired during the marriage (Include Accrual).

For the purposes of an Accrual ANC you need to work out the net values of your property (assets less liabilities) and this value as at the start of the marriage is set out. It can be Rnil if you like. All assets acquired afterwards are shared, even if the asset is in one person's name only.