A marriage out of community of property in South Africa is governed by the Matrimonial Property Act 88 of 1984 and requires a notarial antenuptial contract (ANC) executed before the wedding and registered at the Deeds Office within three months of execution. Each spouse retains a completely separate estate, so there is no automatic sharing of assets or liabilities at dissolution of marriage, no accrual claim unless the ANC specifically incorporates the accrual system, and no joint estate to cushion a financially distressed spouse. The principal disadvantages are loss of accrual sharing, separate estates at death and on divorce, the cost and formality of drafting and registering an ANC, separate wills and estate administration, and continued personal liability for debts incurred by the other spouse.

How the Out-of-Community Regime Works in South Africa

The Matrimonial Property Act 88 of 1984 (the Act) sets out three matrimonial property regimes in South Africa:

• In community of property — the default position, in which a single joint estate is created on the wedding day and the spouses share everything they bring into and build during the marriage;
• Out of community of property without accrual — each spouse keeps everything they ever had, including all growth, both during the marriage and at dissolution; and
• Out of community of property subject to the accrual system — each spouse keeps their starting estates but shares the growth that occurs during the marriage on dissolution by death or divorce.

Couples who marry without an ANC fall into the default regime of in community of property. To choose a different regime, both parties must execute a notarial ANC before the wedding is solemnised. The Act’s accrual system only applies to an out-of-community marriage if the parties expressly include it in the ANC — silence produces a marriage out of community without accrual.

An out-of-community marriage without accrual means complete separation of estates. There is no sharing of assets or liabilities at any point during the marriage, and no sharing at the end. Couples who married before 1 November 1984 (the Act’s commencement date) under older marital property regimes may also need specialist advice, because the Act amended several earlier statutes, including the Matrimonial Affairs Act 37 of 1953, the Deeds Registries Act 47 of 1937, the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979.

The Main Disadvantages: What You Give Up

Loss of accrual sharing

In an out-of-community marriage without accrual, neither spouse has a claim against the other’s estate at dissolution. Whatever the other spouse earned, inherited or accumulated during the marriage remains theirs — there is no built-in mechanism for sharing the growth that typically occurs during a long marriage. Where the parties want separation of estates during the marriage but some sharing of growth on dissolution, the only alternative is to expressly include the accrual system in the ANC.

No joint estate and no automatic sharing on divorce

Unlike an in-community marriage, there is no joint estate to divide. Each party keeps what is in their name. A spouse who stayed home or contributed non-financial work during the marriage has no automatic financial claim on dissolution, unless there is a separate maintenance claim, a tacit partnership claim, or a clean-break settlement agreement.

No automatic sharing on death

When one spouse dies, each spouse’s estate devolves according to that spouse’s own will — or under intestate succession if no will exists. There is no joint estate from which a half-share automatically passes to the survivor. The surviving spouse inherits only what the deceased left them, plus any legitimate maintenance claim. This is structurally different from an in-community marriage, where the surviving spouse already owns half of the joint estate by operation of law.

No spousal tax-free donation benefit

Donations between spouses married out of community of property are not automatically exempt from donations tax in the same way as transfers between spouses married in community of property. Section 56 of the Income Tax Act 58 of 1962 applies differently to the two regimes, and the consequences must be planned for in the couple’s estate structuring rather than assumed.

Continued personal liability for one’s own debts

Because there is no joint estate, one spouse’s creditors cannot attach the other spouse’s separate property to satisfy a debt. The flip side is that each spouse remains solely liable for their own debts and gets no protection from the other spouse’s estate if their own assets fall short. Joint suretyships, joint bonds and joint accounts do not change the underlying regime — each spouse is exposed in proportion to what they have signed for.

Sequestration does not pull in the other spouse’s estate

Either spouse can be sequestrated without affecting the other spouse’s separate estate. This protects the solvent spouse, but it also means a sequestrated spouse gets no automatic relief from the other side’s assets. The creditors of the insolvent spouse have recourse only to that spouse’s separate estate.

The Practical and Procedural Disadvantages

The cost and formality of an ANC

An out-of-community marriage is not free to enter into. It requires a notarial antenuptial contract, drafted by an attorney (typically with both parties taking independent legal advice), signed before a notary public, and registered in a Deeds Office against both parties’ identity documents. The cost comprises drafting fees, notary execution fees, and Deeds Office registration fees charged in accordance with the current deeds registration tariff. The total depends on the complexity of the contract and the firm’s fee structure — a cost conversation at the first consultation is the standard way to obtain a reliable figure.

Three-month execution-to-wedding deadline

The Act requires the ANC to be executed and lodged for registration before the marriage is solemnised. The notarial execution must happen sufficiently in advance for the deed to be lodged at the Deeds Office in time; the deed must be lodged at the Deeds Office before the marriage takes place, and the notarial execution usually needs to happen weeks before that to allow for any corrections. Last-minute weddings can fail on this procedural point, and a late registration generally requires a High Court application to validate.

Both spouses must sign and both must have capacity

If either party is already married, insolvent, or a minor, additional steps apply — a previously married person must have the previous marriage dissolved and produce proof of divorce; an insolvent person generally cannot validly enter into an ANC without court involvement; and a minor needs the assistance of a parent or guardian in the prescribed form. These capacity requirements are designed to protect vulnerable parties but they do add another layer of formality to the ANC process.

No automatic protection against future disagreements

While the out-of-community regime can simplify division on divorce in the sense that there is no joint estate to split, it can also lead to disputes over what falls into which estate — particularly where assets have been mixed, used jointly, or contributed to by one spouse for the benefit of the other. Without the accrual system in the ANC, there is no statutory mechanism for rebalancing the estates; the only recourse is a separate claim (for example, a tacit partnership claim) under the common law.

Estate-Planning Disadvantages

Separate wills required

A will made before marriage is automatically revoked by the subsequent marriage, subject only to specific statutory exceptions. Couples married out of community of property need two wills, each tailored to their separate estates, with provisions for the surviving spouse and any children. The same principle applies after divorce — a divorce also revokes certain bequests in an existing will, making a fresh will advisable once the divorce order is granted.

Intestate succession applies separately to each estate

If either spouse dies without a valid will, their estate devolves in terms of the Intestate Succession Act 81 of 1987 on that estate alone — there is no automatic half-share flowing to the surviving spouse the way there is in an in-community marriage. The surviving spouse inherits only the portion that the Act allocates (which depends on whether there are descendants).

Liquidation and distribution administration runs separately

On death, each estate must be reported to and administered by the Master of the High Court separately. There is no joint estate to administer as a unit. This increases executor fees (charged per estate) and administration time. Where the deceased and the surviving spouse held assets jointly, the joint account or asset still has to be transferred through the correct procedure — it does not pass automatically to the survivor in the same way as a share in a joint estate.

No automatic accrual at death

A spouse married out of community without accrual who dies first leaves their entire separate estate according to their will, with no accrual claim available to the survivor — unlike the with-accrual regime, where the surviving spouse can claim half the growth against the deceased’s estate.

The With-Accrual Sub-Regime: Partial Mitigation

Where parties want separation of estates during marriage but a sharing of growth on dissolution, they can include the accrual system in their ANC. The accrual calculation is performed at dissolution of the marriage by death or divorce: each spouse’s estate is compared to its value at the start of the marriage, and the spouse with the smaller growth is entitled to a share of the difference from the spouse with the larger growth.

The starting values can be excluded entirely (set to nil) in the ANC, which is a common planning tool used to maximise the accrual share at dissolution. The accrual system is the most common form of out-of-community marriage in South Africa and is often used by couples who want both separation during the marriage and a measure of fairness on a long marriage.

Even with the accrual system, however, there is no joint estate during the marriage and no automatic sharing on death without a valid will. The accrual system is a remedy available at dissolution — not an ongoing sharing mechanism during the marriage. Where couples want both protection of separate estates and a measure of post-dissolution sharing, including the accrual system in the ANC is the standard route. Burger Huyser Attorneys’ Family Law team drafts antenuptial contracts across its Gauteng branches and routinely advises couples on whether the out-of-community-with-accrual or out-of-community-without-accrual regime fits their circumstances.

How to Mitigate the Disadvantages

Most of the disadvantages above can be planned around, but only if the planning happens before the ANC is signed — once the contract is registered, changing the matrimonial property regime is not a paperwork exercise. It requires a court application, supported by sound reasons and notice to all interested parties (including creditors).

1. Take independent legal advice before the ANC is signed. The regime is binding once registered, and the disadvantages cannot be undone without a court application (and even then, only on limited grounds).
2. Draft two wills immediately after the marriage. Make them simultaneously and review them together whenever circumstances change — the birth of a child, an inheritance, a change in business interests, or a change in the law.
3. Consider including the accrual system if you want some sharing of growth without a joint estate.
4. Maintain clear records of which spouse owns which asset, especially where joint bank accounts, joint bond payments, or shared property purchases are involved — this avoids disputes on dissolution.
5. Review estate planning regularly with an attorney who can update both wills and the overall structure in light of changes in assets, family, or the law.

Comparison Table: Out-of-Community Without Accrual vs With Accrual vs In Community

Feature	Out of Community (No Accrual)	Out of Community (With Accrual)	In Community of Property
Separate estates during marriage	Yes	Yes	No — single joint estate
Sharing of growth on dissolution	None	Spouse with smaller growth claims half the difference	All growth shared by virtue of joint estate
Sharing of liabilities on dissolution	None	Each liable for own debts	Joint estate liable for joint debts
Estate at death	Surviving spouse inherits per deceased’s will only	Same, plus possible accrual claim	Surviving spouse already owns half
Cost of entry	Notarial ANC + Deeds Office registration	Same	None
Default position if no ANC	N/A	N/A	Yes — this is the default
Suitable for	Couples with pre-marital wealth or separate estates who want full separation	Couples wanting separation but some sharing of growth	Couples wanting full financial partnership

Frequently Asked Questions

What is the biggest disadvantage of a marriage out of community of property?

The biggest practical disadvantage is the complete separation of estates. There is no accrual sharing (unless the ANC includes the accrual system), no automatic claim by one spouse on the other’s assets at death, and no joint estate to divide on divorce. The spouse who stayed home or contributed non-financial work has no automatic financial claim on dissolution.

Can you change from out-of-community to in-community after marriage?

Not simply. Changing matrimonial property regimes after marriage requires a court application under section 21 of the Matrimonial Property Act, supported by sound reasons and notice to all interested parties (including creditors). It is a substantive legal procedure, not a paperwork update.

Is marriage out of community of property better than in community?

There is no universally better answer. It depends on the couple’s assets, earning capacity, family arrangements, and planning goals. Out-of-community marriage protects pre-marital wealth and separates estates, but sacrifices the accrual sharing, joint estate protection, and inheritance benefits of in-community marriage. Many couples marry out of community with accrual to get separation plus some growth sharing.

Does a marriage out of community of property need an antenuptial contract?

Yes. Without a notarial antenuptial contract executed before the marriage and lodged at the Deeds Office, the marriage defaults to in community of property under the Matrimonial Property Act 88 of 1984.

How much does an antenuptial contract cost in South Africa?

Costs include attorney drafting fees (which depend on complexity), notary execution fees, and Deeds Office registration fees. The total varies by firm and by the specifics of the contract. Burger Huyser Attorneys provides a cost conversation at the first consultation based on whether the contract is a standard out-of-community (with or without accrual) or a more complex structure.

What happens to a spouse married out of community if the other dies without a will?

The deceased’s estate devolves in terms of intestate succession under the Intestate Succession Act 81 of 1987. The surviving spouse inherits only the portion that the Act allocates (which depends on whether there are descendants). There is no automatic half-share the way there is in an in-community marriage.

Do I still need a will if I am married out of community of property?

Yes. A will is essential. Without a valid will, your estate devolves under intestate succession rules that may not reflect what you want. The rule that a will is revoked by marriage makes it important to draft a new will shortly after the wedding.

Can spouses married out of community share a bank account?

Yes, but the account is held in the names of both spouses as co-owners in their personal capacities. Each remains liable for their share of any joint obligations, and the funds in the account do not become part of a joint estate. On dissolution, the account is split according to each party’s contribution and any agreement between them.

If you are weighing the out-of-community regime — or already married and wondering whether your ANC reflects your current circumstances — Burger Huyser Attorneys’ Family Law team can take you through the practical trade-offs and draft or review your antenuptial contract. Get in touch via the Linden head office (49 First Avenue, Linden, Randburg, 011 888 0246) or your nearest Gauteng branch — Centurion (012 644 4990), Pretoria Menlyn (012 471 5700), Sandton (011 253 3080), Roodepoort (011 668 0030), Bedfordview (011 201 7190), Alberton (011 439 3990), or Midrand (010 022 4082). Bring your ID and any existing ANC or marriage registration to the first consultation. The firm holds 4.8/5 across 250+ Google reviews (Trustindex verified) and has been recognised as Best Family Law Firm 2024 (Lawyers Monthly) and Family Law Firm of the Year 2024 (MEA Business Awards).