Out of Community of Property With Accrual Explained

Out of community of property with accrual is one of three marriage regimes recognised in South Africa under the Matrimonial Property Act 88 of 1984: each spouse retains their own separate estate throughout the marriage, but at dissolution (by divorce or death) the spouse whose estate has grown the least can claim half the difference between the two estates’ accruals. The regime is only activated if the couple signs an antenuptial contract (ANC) before the marriage — without a notarially executed ANC registered at the Deeds Office, a marriage is automatically in community of property.

The Three Marriage Regimes in South Africa — Where This One Fits

South Africa recognises three matrimonial property regimes under the Matrimonial Property Act 88 of 1984. The regime a couple ends up in is determined by what they do (or do not do) before the wedding:

Regime	How it applies	Treatment at dissolution
In community of property	Default — applies to any couple who marries without a valid antenuptial contract	A single joint estate is divided equally between the spouses
Out of community of property (without accrual)	Activated by an ANC that expressly excludes the accrual system	Each spouse walks away with their own estate — no claim by the other side
Out of community of property with accrual	Activated by an ANC that expressly includes the accrual system	The spouse with the smaller accrual claims half the difference from the other

The default rule is the one that catches most couples off guard: marry without an ANC and you are automatically in community of property, with everything you own on the wedding day pooled into a joint estate. The accrual regime is the middle path — full separation during the marriage, sharing of growth at the end.

What the Accrual System Actually Does

Each spouse’s estate is treated as a closed pool during the marriage. Neither spouse needs the other’s consent to deal with their own assets, and creditors of one spouse cannot attach the other spouse’s estate to satisfy that debt.

At dissolution, the regime does its work through a single calculation:

1. The accrual of each estate is calculated separately — the increase in net asset value from the start of the marriage to its end.
2. The two accruals are compared.
3. The spouse with the smaller accrual has a claim against the spouse with the larger accrual for half the difference.

What Counts as Accrual — and What Doesn’t

The starting point is the commencement value — each spouse’s net asset value at the date of marriage. The endpoint is the net asset value at dissolution. The difference is the accrual.

Included in accrual	Excluded from accrual
Salary and other income earned during the marriage	Assets each spouse brought into the marriage (the commencement value)
Investments acquired during the marriage	Inheritances and legacies received during the marriage (unless the ANC expressly includes them)
Property bought during the marriage	Donations received from the other spouse
Reductions in liabilities over the marriage	Assets specifically excluded by the ANC

The Supreme Court of Appeal’s 2014 decision in Manelis v Manelis settled a long-running point of practice: the commencement value is fixed at the net asset value at the date of marriage, not at a later valuation date. The court rejected an attempt to argue that growth between the date of marriage and the date of formal ANC registration should be stripped out of the accrual calculation. The starting line does not move.

The accrual system can also be expressly excluded in the ANC. Couples who want full separation — no sharing of growth at the end — simply record the exclusion in the contract. This is how “out of community without accrual” is activated, even though it is technically a sub-regime of the same statutory framework.

The Role of the Antenuptial Contract

The regime is not automatic. It must be activated by a properly executed ANC. The procedural requirements are non-negotiable:

• The ANC must be signed by both prospective spouses and executed by a notary public before the marriage takes place.
• The ANC must be registered in a Deeds Office registry within a prescribed period after the marriage to be effective against third parties.
• The Matrimonial Property Act does allow post-marital ANCs, but only by leave of court on good cause shown — and that route is not used to retroactively activate the accrual system.

For an accrual marriage, the ANC must contain specific clauses:

• Declaration that the marriage will be out of community of property
• Declaration that the accrual system applies
• Record of each spouse’s commencement value (or the formula used to determine it)
• Any specific inclusions or exclusions of particular asset classes (for example, expressly including inheritances in accrual if that is what the couple wants)

Why Couples Choose Accrual Over the Other Regimes

Each regime has its own rationale. The accrual system is typically chosen by couples who want separation with a fairness backstop:

• Asset protection during the marriage — each spouse’s creditors can only attach that spouse’s estate; the joint-estate exposure of “in community of property” is avoided.
• Estate planning flexibility — assets brought in can be ring-fenced for children from a previous relationship through carefully drafted commencement values and exclusions.
• Fairness at dissolution — the accrual claim recognises non-financial contributions (raising children, supporting a spouse’s career) without forcing full co-mingling during the marriage.
• A middle ground — compared to “in community of property,” it preserves pre-marital assets; compared to “out of community without accrual,” it still provides a sharing mechanism for growth built up during the marriage.

Couples weighing this regime against the other two are usually trying to balance two competing concerns: protecting pre-marital wealth, and acknowledging the contributions made during the marriage. The accrual system is the only regime that does both in the same contract.

What Happens at Dissolution — Divorce or Death

The accrual claim works differently depending on how the marriage ends:

Event	How the accrual claim is determined	Forum
Divorce	Raised in the divorce proceedings; the court determines each estate’s commencement value, end value, and the difference, and orders payment of half the difference by the spouse with the larger accrual	Regional Court hearing the divorce
Death of one spouse	Enforceable against the deceased estate as a concurrent claim alongside other claims	Master of the High Court that issued the letters of executorship

Recent case-law development has expanded courts’ discretion to adjust the outcome of an ANC where its strict application would be unjust. This remains a developing area rather than an established override, and the position of creditors and children will be weighed before a court departs from the contract the parties signed.

Burger Huyser Attorneys handles antenuptial contracts through its Family Law practice, with the firm’s notary and conveyancing capacity available in-house at the Linden head office and across its Sandton, Pretoria (Menlyn), and Centurion branches for couples across Gauteng.

Step-by-Step: Getting Married Out of Community With Accrual

1. Engage a notary public (typically the same attorney who drafts the ANC) well in advance of the wedding date.
2. Declare your assets and liabilities at the date the ANC is signed — these become the commencement values.
3. Draft the ANC, including the express declaration that the accrual system applies and any inclusions or exclusions.
4. Sign before a notary — both spouses and the notary must sign the ANC before the marriage itself takes place.
5. Register the ANC in a Deeds Office registry within the prescribed period after the marriage.
6. Solemnise the marriage — the regime attaches from the date of marriage.
7. Operate as separate estates during the marriage.
8. Calculate the accrual at dissolution — either agreed between the parties or determined by a court.

For Gauteng couples, the Deeds Office Pretoria covers the area north of the Jukskei River, and the Deeds Office Johannesburg covers the south and west. The notary handling the ANC will know which registry applies based on where the marriage is to take place.

Common Mistakes and Pitfalls

• Signing the ANC too late. The Matrimonial Property Act does not allow retroactive activation of the accrual system. Signing the day before the wedding is fine; signing the day after is not.
• Failing to register at the Deeds Office. The regime binds the spouses but not third parties — a real risk if one spouse runs up debts.
• Treating the commencement value as flexible. Manelis v Manelis closed the door on arguments that the commencement value can be re-set after the marriage.
• Assuming the accrual claim gives a share of specific assets. The claim is for a cash-equivalent amount, not a right to a percentage of any property.
• Assuming inheritances automatically form part of accrual. They do not, unless the ANC expressly includes them.
• Confusing the marriage officer with the notary. The marriage officer solemnises the marriage; the notary executes the ANC. These are distinct functions performed at different points in time, and the ANC must be in place before the marriage.

Frequently Asked Questions

What does “out of community of property with accrual” mean in plain language?

It is a South African marriage regime where each spouse keeps their own separate estate during the marriage and deals with their own assets without needing the other’s consent. At the end of the marriage (by divorce or death), the spouse whose estate grew less can claim half the difference between the two estates’ growth from a notarial antenuptial contract signed before the marriage and registered at the Deeds Office.

Do I have to sign an antenuptial contract to be married out of community with accrual?

Yes — the regime is only activated if the couple signs an antenuptial contract before the marriage, has it executed by a notary public, and registers it at the Deeds Office. Without an ANC, a South African marriage is automatically in community of property, regardless of what the couple agreed informally beforehand.

How is the accrual calculated at the end of the marriage?

Each spouse’s net asset value at the end of the marriage is compared to their net asset value at the start (the “commencement value”). The difference for each spouse is their accrual. The spouse with the smaller accrual can claim half the difference between the two accruals from the other spouse. Assets excluded from accrual by the ANC (such as inheritances) are not counted in the growth calculation. The Supreme Court of Appeal confirmed in Manelis v Manelis (2014) that the commencement value is fixed at the date of marriage and cannot be re-set later.

What happens to inheritances and gifts during an accrual marriage?

Inheritances and legacies received by either spouse during the marriage are excluded from the accrual calculation, unless the antenuptial contract expressly includes them. Donations received from the other spouse are also excluded by default. This is one of the main reasons couples with family wealth or children from previous relationships choose this regime — pre-marital assets and inherited assets can be ring-fenced.

Can we change from “out of community with accrual” to “without accrual” after we are married?

Only by leave of court on good cause shown, under section 21 of the Matrimonial Property Act — it is not a routine amendment and the court will consider the position of creditors and children. Most couples who want to waive the accrual claim do so by recording the exclusion in the original ANC, not by a post-marital amendment.

Does the accrual claim give me a share of specific property, or just a cash claim?

The accrual claim is a personal claim for a cash-equivalent amount — half the difference between the two accruals. It does not automatically give the claimant a percentage interest in any specific asset owned by the other spouse. In practice, the parties may agree to settle the claim by transferring a particular asset (often the matrimonial home), but that is a settlement choice, not a legal right under the regime.

How does the regime work if the marriage ends by death rather than divorce?

On death, the surviving spouse can claim half the difference between the two accruals against the deceased spouse’s estate. The claim is a concurrent claim in the deceased estate administration, alongside other claims against the estate. If the ANC excluded accrual, no claim arises.

Getting married and weighing up the accrual regime? Burger Huyser Attorneys’ Family Law team can draft and register your antenuptial contract. The firm practises from its Linden head office in Randburg (49 First Avenue, 011 888 0246) and from its Sandton, Pretoria (Menlyn), and Centurion branches, with notarial services handled in-house. Book an ANC consultation and bring any prior marriage documents, a list of current assets and liabilities, and any inheritance or family-wealth considerations you want ring-fenced in the contract.