There are three property ownership systems which you can choose from when you get married in South Africa. These systems are known as marital regimes. Your property ownership system will determines the financial consequences of your marriage. Basically, it will determine what you own, what your partner will own and what you will share. It will also determine the rights of your creditors and your partner's creditors.

Unless you enter into an antenuptial contract (“ANC”) before you get married you are married in community of property. This is also true for African Customary Marriages and any other cultural marriage which is recognised in our law. The Recognition of Customary Marriages Act recognises an African Customary Marriage at the time that the marriage becomes valid in terms of Customary Law. The registration at Home Affairs is merely a registration of an already valid marriage. Your ANC must be entered into before the customary marriage is completed in terms of Customary Law. 

Before you get married it is important that you think about and decide which system is best for you. To make this decision you need to know what the effect of each system is.

If you choose to get married with an ANC you can enter into the contract which allows you to share with your partner or one that does not. That is: with or without the application of accrual (sharing) system.

The three systems available to you in South Africa are:

1. Community of Property:

This is the default system. Unless you enter into an ANC before you get married, you are automatically married in community of property.

Under this system, you and your partner will share all property and will also share all debt (from before and after marriage). Your estates are treated as one estate with a few exceptions (joint estate).

With this system your creditors and your partner’s creditors may go after any property in the joint estate for debt. It will not matter which of you created the debt or which of you bought the property. If your partner gets into financial debt this may result in you losing property which you bought without his help. If your partner owns a business and has signed surety for the business your family may lose everything and need to start from scratch.

Under this system you and your partner can only enter into certain contracts together (limited right to contract).

2. ANC (with Accrual):

Under this system your estates are treated as separate during your marriage subject to the Insolvency Act. On death or divorce sharing occurs. You do not require permission / signatures from your partner to enter into contracts.

On death or divorce the increase (accrual) of each estate since marriage is calculated. This is done by subtracting the current value of each estate from the value of that estate on marriage (“commencement value”). The increase in the estate which has grown the most is then subtracted from the increase of the other estate. Half of this difference between the estates is given (“accrues”) to the person with the smaller accrual (increase) in his/her estate.

As an example:

Jennifer married John. On marriage, Jennifer had an estate valued at R35,000.00. John had an estate of R15,000.00.

Jennifer dies.

On her death her estate is valued at R50,000.00. John’s estate is valued at R45,000.00.

Commencement values:

Jennifer: R35,000.00 John: R15,000.00

Current values (at Jennifer’s death):

Jennifer: R50,000.00 John: R45 000-00

Accrual in Jennifer’s estate: R50,000.00 – R35,000.00 = R15,000.00

That is: Jennifer’s estate has increased by R15,000.00 since she got married.

Accrual in John’s estate: R45,000.00 – R15,000.00 = R30,000.00

That is: John’s estate has increased by R30,000.00 since he got married.

It is important to remember that it is the increase in the estates and not the value of the estates that is shared. This is because the partners support each other during the marriage and thus help increase the value of each other’s estates. While

Jennifer still has the larger estate but John's estate has grown more.

The difference between the accrual in their estates is: R30,000.00 – R15,000.00 = R15,000.00 (difference)

As Jennifer's estate has grown the least she gets half the difference in the growth in their estates, being: R7,500.00

Their estates after the accrual would be:

They are sharing what they built together but keep what they brought into the marriage.

As a further illustration:

3. ANC (without accrual):

This marital system does not allow for sharing at all. Your estates remain separate throughout the marriage subject to the Insolvency Act. On death or divorce you may get a portion of your partner’s estate only by operation of law, by inheriting it, by order of Court or by agreement (e.g. in a divorce settlement agreement).

Where your partner helps you build your estate he/she can lose out unfairly where the marriage is entered into without the sharing system. The typical problem here is where your partner is a full time homemaker or works in your business during the marriage at no cost to you.

Where both partners own businesses and/or have family interests which they do not want to form part of the marriage they usually enter into this marital system. It is also usually the chosen system for second marriages.

Both ANC options will provide protection from creditors subject to the Insolvency Act.

REQUIREMENTS:

In order to register an ANC the following information / documentation is required:

- Full names

- Marital status

- Identity numbers (original identity documents must be brought with you on signature)

- Whether you wish to enter into an ANC with or without the application of the Accrual System

-  For ANCs with Accrual:

Commencement value: The Rand value of each of your estates now. If you do not want to share specific items, these can be excluded. The value of your excluded items must not be added as part of the commencement value of your estate.

Excluded assets: These are the items you do not want to share. As an example: family heirlooms, family owned businesses and policies taken out before marriage. These items would be completely ignored in any calculation or sharing. It is as if these items never existed. A short description of the item which describes the item enough that it may be identifiable on death or divorce, is enough.

PROCESS:

- Instruction and information received,

- ANC drafted,

- Signature by you,

- Letter for Priest / Pastor / Marriage Officer given to you,

- ANC is entered into a Notary’s Protocol book,

- ANC is lodged at the Deeds Office for registration,

- After registration we contact you to collect the original ANC (currently the Deeds Office is taking a few months to return the original ANC to ourselves)

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