With or without accrual? Choosing your ANC.

The three options

South African law gives couples three main marital property systems. Which one applies to you depends on whether you sign an antenuptial contract before the wedding, and what it says.

In community of property

If you marry without an antenuptial contract, you are married in community of property. Everything you each own and owe, from before and during the marriage, becomes part of one joint estate. For certain important transactions, such as selling the family home or signing as surety, the law requires the other spouse's written consent.

Some couples choose this deliberately. Others end up in it simply because they did not sign an antenuptial contract in time.

Antenuptial contract with accrual

The accrual system, set out in the Matrimonial Property Act, aims to combine independence with fairness. During the marriage each spouse has a separate estate and manages it independently. When the marriage ends, by divorce or death, the growth in each estate is compared.

How accrual is calculated

For each spouse, the accrual is broadly the net value of their estate at the end of the marriage, less the net value it had at the start of the marriage (the commencement value, adjusted for inflation). The spouse whose estate grew less has a claim against the other for half the difference between the two accruals.

A simple example: during the marriage, Thandi's estate grows by R1,000,000 and Johan's by R400,000. The difference is R600,000, so Johan has a claim against Thandi for R300,000. Both spouses then end up sharing equally in the growth that happened during the marriage.

Declaring your starting values

Each spouse can declare the net value of their estate at the start of the marriage. This is usually done in the antenuptial contract itself. Declaring a realistic starting value matters, because it is the baseline against which growth is later measured.

What is left out of the calculation

Certain assets are excluded from the accrual by law, such as inheritances, legacies and donations received from third parties, unless the contract says otherwise. You can also agree in the contract to exclude specific assets, for example a business or a property you already own.

Antenuptial contract without accrual

Without accrual, your estates are completely separate during and after the marriage. Each spouse keeps what they own and is responsible for their own debts. There is no sharing of growth when the marriage ends.

This is often chosen by people who own a business, have significant assets already, or are marrying again and want to keep their estates entirely separate, for example to protect children from an earlier relationship.

Questions to ask yourselves

• Will one of you earn significantly more, or take time off work to raise children? Accrual can protect the spouse whose estate is likely to grow less.
• Does either of you own a business, or plan to start one? Business risk is one reason couples consider separate estates or excluding specific assets.
• Do either of you have children from a previous relationship, or assets you want to keep for them?
• Are there assets you already own that you would like excluded from any sharing?

There is no single right answer. The best choice depends on your circumstances, and it is worth discussing openly before the wedding.

Timing and formalities

An antenuptial contract must be signed before a notary before the wedding day. It must then be registered in the Deeds Office within three months of signing. If either step is missed, you may find yourselves married in community of property. Couples who cannot attend in person can usually sign a power of attorney so that the notary can execute the contract on their behalf.

Changing your marital property system after the wedding requires an application to court, which takes more time and costs more than signing an antenuptial contract upfront.