Community of Property With Accrual | A Legal SA Guide

“Community of property with accrual” is not, in itself, a recognised South African matrimonial property regime — the three regimes under the Matrimonial Property Act 88 of 1984 are in community of property, out of community of property, and out of community of property with the accrual system, and the accrual system only attaches to a marriage that is out of community. A couple who wants accrual must marry out of community of property and execute an Antenuptial Contract (ANC) that specifically incorporates the accrual clause before the wedding, with the contract attested by a notary public and registered within three months of execution. The accrual calculation on dissolution (death or divorce) works by subtracting each spouse’s net asset value at the start of the marriage from their net asset value at the end, and the spouse with the smaller accrual may claim half the difference from the other — but the Supreme Court of Appeal’s 2020 decision in Manelis v Manelis now allows a court to override an explicit accrual exclusion in an ANC where enforcing it would be grossly inequitable.

The Three Matrimonial Property Regimes Under South African Law

South Africa recognises exactly three matrimonial property regimes, all created or preserved by the Matrimonial Property Act 88 of 1984. Each one structures the relationship between a married couple’s estates differently, and the choice between them is made before the wedding — either by doing nothing (in which case a default applies) or by signing a properly drafted and registered Antenuptial Contract.

• In community of property — the default regime for any marriage solemnised after 1 November 1984 where no valid ANC was executed beforehand; the couple’s estates merge into a single joint estate.
• Out of community of property — each spouse keeps their own separate estate, with no accrual sharing; reached only by an ANC that expressly excludes the accrual system.
• Out of community of property with the accrual system — each spouse keeps their own estate during the marriage, but on dissolution the spouse with the smaller accrual may claim half the difference from the other; reached only by an ANC that expressly includes the accrual clause.

A couple cannot be “in community of property with accrual” — the concepts are mutually exclusive at the structural level. In-community estates are already merged, so there is nothing to accrue between them; the accrual calculation only makes sense where each spouse has a separate estate to compare.

Why “Community of Property With Accrual” Doesn’t Exist as a Regime

The phrase trips up couples because, on its face, it sounds like a more moderate version of community of property — full partnership but with the accrual calculation layered on top. The phrase does not, however, map to anything in the Matrimonial Property Act, and the gap is structural rather than a naming quirk.

• In a community-of-property marriage, all assets and liabilities owned at marriage (or acquired during it) fall into the joint estate and are owned in undivided shares by both spouses — there is no separate “spouse A estate” and “spouse B estate” to compare at dissolution.
• Accrual works by computing two separate growth curves (one per spouse) and equalising half the gap. If there is only one merged estate, there is no second curve and the calculation collapses.
• If the searcher’s real intent is “we want to share what we each built during the marriage, but we don’t want our premarital assets pooled,” the answer is out of community of property with the accrual system — not in community with accrual added on.

What “In Community of Property” Means in Practice

The default regime has concrete consequences that many couples only appreciate once a divorce, a creditor claim, or a deceased-estate winding-up forces a reckoning with the joint estate.

• One joint estate from the date of marriage: everything each spouse owns at that moment, plus everything acquired during the marriage, falls into the pool.
• Both spouses are jointly and severally liable for the joint estate’s debts, regardless of whose name the debt is in.
• On dissolution (death or divorce), the joint estate is split 50/50 between the spouses or their estates — irrespective of who contributed what.
• The default regime applies automatically unless a valid ANC was executed and registered before the marriage; this default is the single most consequential planning point in SA family law, because many couples enter marriage without realising what the default commits them to.

What “Out of Community of Property With Accrual” Means in Practice

The accrual regime preserves estate separation during the marriage while still sharing the wealth each spouse builds during it. The mechanics matter, because the right that crystallises on dissolution is narrower than it often appears.

• Each spouse retains a separate estate throughout the marriage; assets owned before marriage stay outside the marital pool, and assets acquired during marriage belong to the spouse who acquired them.
• On dissolution, the accrual system requires a calculation for each spouse: net asset value at the end of the marriage minus net asset value at the start of the marriage.
• The spouse with the smaller accrual has a claim against the other for half the difference between the two accruals — not for half of the other spouse’s assets generally.
• The accrual calculation is a once-off equalisation at dissolution; it does not give either spouse a right to the other’s income, property, or management of property during the marriage.
• The starting point for the calculation is the net asset value at the date of marriage for marriages after the commencement of the Matrimonial Property Act; for older marriages the calculation reference dates differ.

The Antenuptial Contract: How a Couple Opts In (or Out) of Accrual

The ANC is the legal instrument that does the regime-switching work. Drafted correctly and registered on time, it determines the financial architecture of the marriage for decades. Drafted poorly, it leaves couples in a regime they did not choose.

• An ANC is a notarial contract entered into before the marriage is solemnised; an “antenuptial” contract by definition cannot be entered into after the wedding.
• It must be signed by both future spouses and two competent witnesses, then attested by a notary public, and lodged for registration in the Deeds Office within three months of execution — failing the three-month window the contract remains valid between the parties but is not registerable, which defeats its purpose against third parties.
• The ANC must contain an explicit clause either including or excluding the accrual system. Writing only a generic “we marry out of community” without specifying the accrual position results in an out-of-community marriage without accrual — the opposite of what most couples think they have agreed.
• Postnuptial contracts (executed after the marriage) can change the matrimonial property regime only by way of a High Court application under section 21 of the Matrimonial Property Act, which requires the consent of both spouses, specific factual grounds, and the court’s discretion.

The Accrual Calculation Step by Step

1. Determine the net asset value of each spouse’s estate at the start of the marriage (date-of-marriage values for post-1984 Act marriages).
2. Determine the net asset value of each spouse’s estate at the end of the marriage (date of death for a deceased estate, or date of separation for divorce — the leading formulation under the accrual formula).
3. Compute each spouse’s accrual: end value minus start value, with no indexation for inflation in the basic statutory formula.
4. Identify the spouse with the smaller accrual — that spouse (or their estate) has the claim; the spouse with the larger accrual is the one who may have to pay.
5. The claim is for half the difference between the two accruals, not half of one spouse’s estate.
6. Certain assets are excluded by the Act from the start or end values (inheritances, legacies, and donations from third parties during the marriage are excluded from the calculation unless the receiving spouse has expressly included them by way of an antenuptial or postnuptial notarial agreement).
7. Where the calculation produces a negative accrual (assets shrank during the marriage), the Act’s treatment differs between the parties’ positions, and counsel should be consulted for any file where a negative accrual is likely.

The Post-Manelis v Manelis Override: What Changed in 2020

For decades the standard advice was that an explicit exclusion of accrual in an ANC was effectively absolute. The Supreme Court of Appeal’s 2020 decision in Manelis v Manelis recalibrated that position, and the recalibration now matters at the drafting stage.

• The Supreme Court of Appeal’s 2020 decision in Manelis v Manelis held that a court has an inherent discretion, in exceptional cases, to override an explicit exclusion of the accrual system in an ANC where enforcing the exclusion would be grossly inequitable.
• The test requires the spouse seeking the override to show that enforcement of the contractual exclusion would, in the circumstances of the case, be grossly inequitable — a high threshold, not a routine redress for an unfair bargain.
• The implication for couples drafting ANCs now is that an exclusion of accrual is no longer an absolute shield; the inclusion of accrual is closer to the parties’ presumed intent at the time of contracting, and the case-law direction is toward recognising accrual absent clear contrary agreement.
• For couples who genuinely want to exclude accrual, the practical drafting point is to make the exclusion deliberate, recorded, and (where appropriate) supported by independent legal advice for both parties — this both honours the parties’ choice and reduces the factual ground on which a future court could later find gross inequity.

Why Couples Choose Each Regime

Regime	Best suited to couples who…	Key trade-off
In community of property	Want a fully merged marital estate and a clean 50/50 split on dissolution with no accrual calculation.	Each spouse is jointly liable for the other’s debts; premarital assets are pooled.
Out of community of property (no accrual)	Want complete contractual separation, often where one or both spouses have substantial premarital assets, business interests, or expected inheritances they wish to ring-fence.	No sharing of growth during the marriage; the spouse whose assets grew less has no claim against the other.
Out of community of property with accrual	Want to keep premarital assets separate, but share the wealth each builds during the marriage equally on dissolution.	Requires the accrual calculation on dissolution; default rules around inheritances and donations need to be understood.

Common Misconceptions About the Accrual System

• “Accrual means we share everything 50/50 when we divorce.” Incorrect. Accrual only equalises half the difference between the two estates’ growth, not half of either estate.
• “If we sign an ANC we are automatically out of community with accrual.” Incorrect. An ANC without an express accrual clause puts the marriage out of community without accrual.
• “Accrual gives me a right to my spouse’s salary while we are married.” Incorrect. Accrual only crystallises on dissolution (death or divorce).
• “We can sort out the regime after the wedding.” Partially incorrect. The regime is fixed at the date of marriage; changing it later requires a High Court application under section 21, not a simple new contract.

Practical Considerations for Couples Planning a Marriage

• Engage an attorney who handles ANC drafting well before the wedding date — the contract must be signed, attested, and registered before the marriage is solemnised, with a realistic lead time of at least a few weeks.
• Decide the accrual question explicitly: in or out. A neutral, ambiguous clause in an ANC is interpreted against the drafter and may end up as out-of-community without accrual.
• Disclose all material assets at the date of marriage so the accrual starting values are unambiguous — disputes about the starting values are the most common source of accrual litigation on divorce.
• Review the ANC if circumstances change materially during the marriage (a major inheritance, a business interest, a move into or out of joint property ownership) — the contract can be amended postnuptially by High Court application under section 21.

Frequently Asked Questions

Can a couple be married “in community of property with accrual” in South Africa?

No. South African law recognises exactly three matrimonial property regimes — in community of property, out of community of property, and out of community of property with the accrual system — and the accrual system can only apply to a marriage that is out of community. In a community-of-property marriage there is no separate estate structure on which the accrual calculation can operate, because the spouses’ estates are already merged.

If we sign an antenuptial contract without mentioning accrual, what regime are we in?

Out of community of property, without the accrual system. An ANC that omits any express reference to accrual puts the marriage out of community without accrual — which is often the opposite of what couples think they have agreed. Couples who want accrual must say so expressly in the ANC; couples who want to exclude accrual should say so expressly as well, particularly in light of the Manelis v Manelis discretion to override an exclusion in cases of gross inequity.

How is the accrual amount calculated on divorce?

Each spouse’s net asset value at the start of the marriage is subtracted from their net asset value at the end of the marriage to produce an accrual figure for each; the spouse with the smaller accrual may claim half the difference between the two from the spouse with the larger accrual. The claim is for half the gap, not half of either estate, and certain assets (inheritances, legacies, and third-party donations during the marriage) are excluded from the calculation unless the parties have agreed otherwise by notarial agreement.

Can a court force the accrual system on a couple who excluded it in their ANC?

Under the Supreme Court of Appeal’s 2020 decision in Manelis v Manelis, a court has an inherent discretion to override an explicit exclusion of the accrual system in an ANC where enforcing the exclusion would be grossly inequitable. The threshold is high and the discretion is exercised only in exceptional circumstances, but it is no longer accurate to treat an accrual exclusion in an ANC as an absolute shield.

Can we change our matrimonial property regime after we are already married?

Only by High Court application under section 21 of the Matrimonial Property Act, with the consent of both spouses, supported by specific factual grounds, and subject to the court’s discretion. It is not done by a simple new contract; the process is materially more demanding than an ANC executed before the wedding.

Does Burger Huyser Attorneys draft antenuptial contracts?

Yes — antenuptial contracts fall under the firm’s Family Law practice, and the firm’s family law team handles the full arc of an ANC: advising on the accrual question (in or out), drafting the contract, attending to the notarial attestation, and lodging it for registration in the Deeds Office within the three-month statutory window. Initial consultations are booked through the head office in Linden, Randburg.

If you and your partner are deciding between in community of property and out of community of property with accrual — or you are already married and want to revisit the regime in light of changed circumstances — Burger Huyser Attorneys’ family law team can advise on the right structure for your situation, draft the antenuptial contract (or postnuptial High Court application under section 21 of the Matrimonial Property Act), and attend to the notarial attestation and Deeds Office registration. Initial consultations are booked through the head office at 49 First Avenue, Linden, Randburg on 011 888 0246 (after-hours 061 516 6878), Monday to Friday, 7:30am to 4:30pm. The firm is led across its Family Law department by Director Anna-Mi Nel, and antenuptial contract work is coordinated through the Linden office in conjunction with the firm’s Sandton, Pretoria, Centurion, and other Gauteng branches. Burger Huyser Attorneys carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is rated Best Family Law Firm 2024 – South Africa (Lawyers Monthly Legal Awards 2024) and Family Law Firm of the Year 2024 – South Africa (MEA Business Awards 2024).