Legal Aspects
What are the legal implications of getting married? What changes?
How does it affect financial issues?
Many couples refuse to have an ANC on the basis that
a) they are never going to divorce and
b) they plan to always share everything
This may sound very romantic, but it is not only your assets that are jointly owned – you are also liable for
each other‟s debts. The last thing you want to do is to put your family home at risk, yet couples marrying
without an ante-nuptial contract often fail to grasp that this is just what could happen if one of them should
decide to start a business venture which fails, because at the end of the day, they will both be liable for
any debts incurred. At the start of your marriage you may have no plans to start your own business, but
who knows what might happen 10 years hence.
If you decide after the ceremony that you would have preferred to have had an ANC, you will require a
High Court Application, which is very costly. In addition, you will be expected to produce a valid reason as
to why you did not conclude an ANC before your marriage.
In terms of South African law, a couple may marry either without an ante-nuptial contract, meaning the
marriage is „in community of property‟, or with one, which will generally exclude community of property
and may be either with or without accrual.
Community of Property
In South Africa, if no ante-nuptial contract is signed prior to the wedding, you are automatically married in
community of property. In layman's terms, this means that all property owned by either spouse becomes
part of the joint estate upon marriage, whether it is theirs at the time of the marriage or is acquired by
them after the wedding.
The advantage is that both parties share equally in each other‟s wealth.
The downside of marrying in community of property is that, should either of you face bankruptcy during
the course of the marriage, your joint estate is vulnerable to the claims of your creditors.
Example: One of you owns a house before the marriage. You use it as a family home. Your partner gets
into debt (a business venture fails) and you may loose your house! If you had signed an ANC out of
community of property, your house would be untouchable by your spouse‟s creditors! This exemplifies
how it is not only in case of death or divorce that you may benefit from this arrangement.
Certain assets do not form part of the joint estate, namely:
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Assets which are specifically excluded from community of property in terms of an antenuptial
contract;
Donations and inheritances which are expressly excluded from community of property by the
testator/testatrix or donor;
Assets acquired subject to a fideicomissum or usufruct. However, the fruits of such assets will
form part of the joint estate unless such fruits are also specifically excluded therefrom;
Any amount recovered by a spouse by way of damages for non-patrimonial loss;
Certain life insurance policies.
Since both spouses are joint owners and administrators of the communal estate, various transactions
which bind the communal estate require the consent of both spouses prior to transacting (e.g. buying a
house).
2. Marriage out of Community of Property
2.1 Marriage out of Community of Property excluding the Accrual System
Each spouse will own and control his or her own estate assets without interference or control by the other
spouse. The estate of each spouse consists of all the assets he or she owned prior to the marriage and
any assets acquired by each spouse subsequent to the marriage. Such a matrimonial property system
means that each spouse is personally liable for his or her own debts and obligations existing before the
marriage and arising thereafter. This is what most people do when they have just started dating and is an
extremely safe option. The disadvantage is that if the one spouse‟s assets increase at a much faster rate
than the other (he is the CEO of a multinational and she is a part-time secretary or a housewife), on
dissolution of the marriage the spouse who‟s estate has shown a smaller rate of growth will have no claim
against his former spouses estate. This often leaves a woman in a disadvantaged position, especially if
she has sacrificed her career to be a mother.
2.2 Marriage out of Community of Property incorporating the Accrual System
The accrual system is automatically applicable to marriages concluded out of community of property,
unless the accrual system is expressly excluded in the ANC. In terms of the accrual system spouses are
entitled to share equally in the “net accrual” of their respective estates upon dissolution of the marriage
either by death or divorce. The term “accrual” is used to denote the net increase in value of the estate of a
spouse since the date of the marriage. In other words, what was yours before the marriage remains
yours, what you have earned during the marriage belongs to both. Because the right to share in accrual is
exercisable only upon dissolution of the marriage, such right is not transferable and cannot be attached
by creditors during the subsistence of the marriage. During the subsistence of the marriage to which the
accrual system applies, two separate estates still exist and each spouse manages and controls his or her
own estate.
Calculation of Accrual and Net Accrual
The accrual of a spouse‟s estate is calculated by subtracting the net asset value of his or her estate at the
commencement of the marriage from the net asset value of his or her estate upon dissolution of the
marriage. This can be exemplified as follows:
If spouse A had a net asset value of R10 000-00 at the commencement of the marriage (his “initial value”)
and a net asset value of R100 000-00 at the dissolution of the marriage (his “end value”) then the accrual
to his estate is R90 000-00. If the initial value of the other spouse B was R20 000-00 and her end value
R200 000-00, it follows that the accrual to her estate is R180 000-00.
Net accrual is calculated by subtracting the “smaller” accrual from the “larger” accrual. In the above
example: R180 000-00 – R90 000-00 = R90 000-00. In accordance with the Matrimonial Property Act, A
(the spouse with the smaller accrual) acquires a claim against B (the spouse with the larger accrual) for
one half of the net accrual (namely – R45 000-00).
The initial value of a spouse‟s estate must be declared either in an antenuptial contract or a separate
statement made not later than six months after the marriage, failing which the initial value will be deemed
to be nil.
Various assets are excluded from the determination of the accrual of a spouse‟s estate, and they are:
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Any amount which accrued to the estate by way of damages other than damages for patrimonial
loss;
Any asset which has been expressly excluded from the accrual system in terms of the antenuptial
contract of the spouses as well as any other asset which a spouse has acquired by virtue of his or
her possession or former possession of such asset;
An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his or
her marriage as well as any other asset which he or she acquired by virtue of his or her
possession or former possession of such inheritance, legacy or donation, except insofar as the
spouses may agree otherwise in their antenuptial contract or insofar as the testator/testatrix or
donor may stipulate otherwise;
Donations between spouses other than a donation mortis causa (after death).
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