Before you say, “I do”, ensure you understand the implications of the matrimonial property regime you choose.

The consequences of concluding or dissolving a marriage are determined by matrimonial property law. The rules of matrimonial property law thus regulate the financial relationship among spouses, and between spouses and third parties such as creditors during the subsistence of the marriage, as well as upon dissolution.

Since the commencement of the Matrimonial Property Act 88 of 1984 on 1 November 1988, prospective spouses can choose between the following matrimonial property systems:

1. Marriage in community of property; or
2. Marriage out of community of property, which is either: (a) with the accrual system; or (b) without the accrual system.

Marriages in South Africa are automatically in community of property and it is thus considered the default marital regime. If the parties wish to be married out of community of property (with or without the accrual system), an ante-nuptial contract must be concluded. The consequence of marriage in community of property is that one joint estate comes into existence upon the conclusion of the marriage. This means that all the assets and liabilities both spouses acquired prior to and during the marriage will form part of their joint estate. The spouses thus manage the joint estate with equal control. Upon the dissolution of the marriage each spouse will be entitled to an equal share (ie 50%) of their joint estate.

Since the Matrimonial Property Act came into operation, all marriages out of community of property automatically include the accrual system unless it is explicitly excluded by the spouses in their ante-nuptial contract. Marriage out of community of property with the accrual system means that each spouse retains his or her own separate estate (as prior to the marriage) which the spouses can administer independently during the subsistence of the marriage. Upon the dissolution of the marriage, the spouse whose estate has shown the smaller accrual during the marriage can share in the growth of the other spouse’s estate. Practically this means that if each of the spouses had an estate worth R20 000 each at the conclusion of the marriage, and at the dissolution of the marriage the husband’s estate is worth R50 000 and the wife’s estate is worth R100 000, the husband will be entitled to 50% of the total accrual of the wife’s estate (ie 50% x R80 000 growth during the marriage). The accrual will be calculated according to a formula as set out in the Matrimonial Property Act.

Marriage out of community of property without the accrual system also results in both spouses retaining their own separate estates consisting of all the assets and liabilities they obtained before and after entering into marriage. Each spouse will thus administer their estate independently and spouses will not be liable for each other’s debts. Neither spouse has a claim against the other upon dissolution of the marriage. There is thus a complete separation of assets between the spouses.