What is Excluded from Marriage in Community of Property?

Marriage in community of property is the default matrimonial property regime in South Africa for couples who marry without an antenuptial contract. Section 2 of the Matrimonial Property Act 88 of 1984 sets out exactly four categories of asset that fall outside the joint estate: assets a spouse brought into the marriage and excluded by an ante- or post-nuptial contract; inheritances specifically excluded by the testator in the will; donations from third parties specifically excluded by the donor in the donation document; and assets excluded by any other law. Income and profits from excluded assets also fall into the joint estate unless the donor or testator expressly excluded them under section 3, and both spouses are jointly and severally liable for the debts of the joint estate under section 15. Couples who want meaningful asset separation must sign an antenuptial contract before the wedding — once married in community, the only way out of the regime is a court application under section 21, which is rarely granted.

What “In Community of Property” Actually Means

Without an antenuptial contract, marriage in South Africa is automatically in community of property under section 2 of the Matrimonial Property Act read with section 3. The regime applies uniformly across all marriages in the country since the repeal of the Black Administration Act in 1988, which had previously excluded many Black marriages from the default community-of-property rule. On the date of marriage, all assets and liabilities of both spouses merge into one joint estate, and each spouse owns a half-share of every asset in that joint estate regardless of who acquired it or whose name appears on the title deed.

Spouses also act jointly in administering the joint estate under section 7 of the Act — neither can deal with a major asset (immovable property, motor vehicles above a threshold, business interests) without the other’s written consent. A sale or mortgage entered into without that consent can be set aside on application to court. This is the legal starting point for the exclusions question: the rest of this article covers what falls outside this general rule.

The Four Statutory Exclusions Under Section 2

Section 2 of the Matrimonial Property Act enumerates four categories that sit outside the joint estate. Each requires a specific, formal trigger — silence on the relevant document is not enough.

Subsection	Excluded category	What makes the exclusion effective
Section 2(a)	Pre-marital assets excluded by ante-nuptial or post-nuptial contract	Assets a spouse owned before the marriage, expressly excluded in a written antenuptial contract executed by a notary and registered in a Deeds Registry within the prescribed period after the marriage
Section 2(b)	Inheritances specifically excluded by the testator	An inheritance received during the marriage where the deceased’s will contains an express clause excluding the bequest from any community of property
Section 2(c)	Donations from third parties specifically excluded by the donor	A donation received during the marriage from someone other than the other spouse, where the donation deed or letter expressly excludes the asset from community
Section 2(d)	Assets excluded by any other law	A residual category covering assets protected by other statutes (for example certain pension proceeds governed by the Pension Funds Act 24 of 1956), certain trust-held assets, court-ordered awards, and amounts excluded by court order

The most commonly missed point in this list is the express-exclusion requirement. A bequest in a will that simply leaves “my house to my daughter” is silent on the matrimonial property regime, and the silence sends the asset into the joint estate. The same applies to a donation letter that simply says “I give you R100,000” without excluding it from community. Drafting the exclusion clause is as important as drafting the gift.

What Is Not Excluded, Despite Common Misconceptions

Couples planning their financial life together routinely misread the regime. The items below all flow into the joint estate by default unless a formal exclusion exists — the misconception is usually that the asset “belongs” to one spouse because of how it was acquired or used.

• Inheritances without an exclusion clause in the will — fall into the joint estate; this is the single most common point of confusion in estate planning for married couples.
• Donations without an exclusion clause from the donor — fall into the joint estate by default, even if the donor intended them as a personal gift.
• Clothing and personal effects — historically excluded at common law, but under the current Act these now generally form part of the joint estate unless an ANC or express donor/testator exclusion says otherwise.
• Income from excluded assets — under section 3, rent, interest, and dividends from excluded assets form part of the joint estate unless the donor or testator expressly excluded the income as well.
• Profits from the sale of excluded assets — the proceeds of selling an excluded asset revert to the joint estate unless the original donor or testator excluded the proceeds, or the proceeds are reinvested in another specifically excluded vehicle.
• Personal injury damages — special damages (medical expenses, lost income) fall into the joint estate; general damages for pain and suffering are treated flexibly in case law but generally also flow into the joint estate.
• A spouse’s salary or earnings during the marriage — form part of the joint estate by definition, regardless of whose bank account they land in.
• An engagement ring received during the marriage — forms part of the joint estate unless an exclusion clause was included in the donor’s gift, or the donor was the other spouse and the donation was properly authorised under section 22.

Gifts Between Spouses

Spouses cannot donate to each other without following the formalities set out in section 22 of the Matrimonial Property Act — a donation between spouses that is not properly authorised is void. A donation between spouses also does not change the matrimonial property regime itself — the asset still forms part of the joint estate unless the marriage is out of community of property. This is why a spouse who “gives” the other a house or a car while married in community does not in fact change anything about ownership: the asset remains part of the joint estate and the other spouse already owns a half-share by operation of law.

Income, Profits, and the Section 3 Mechanic

Section 3 sets the income and profits rule that complicates an apparently clean exclusion. Income from an excluded asset — rent, interest, dividends — joins the joint estate by default. The testator or donor can override this default by expressly excluding “all income and profits derived from” the asset in the will or donation deed. Where no such clause exists, the cleanest practical protection is to receive the asset into a separate trust or into a vehicle the antenuptial contract treats as excluded.

Worked example: A spouse inherits a rental property with a clause excluding both the property and all rental income from community. Both the property and the rental income stay outside the joint estate. Without the rental-income exclusion, only the property stays outside and the rent flows into the joint estate each month.

Joint and Several Liability for Debts (Section 15)

Once assets are pooled, the debts are pooled too. Under section 15 of the Matrimonial Property Act, both spouses are jointly and severally liable for debts incurred by the other spouse acting in the course of the joint estate’s administration, and a creditor of either spouse can attach the joint estate for the debts of one spouse. This is one of the most often-missed risks of marriage in community of property — one spouse’s debt can attach to assets the other spouse brought into the marriage, including any growth on those assets during the marriage. Couples contemplating marriage who carry business or personal liability should weigh this exposure carefully against the cost of an antenuptial contract.

The Household Necessaries Rule (Section 18)

Either spouse can bind the joint estate for household necessaries (food, clothing, shelter, medical care, education) even without the other’s consent. The rule applies regardless of which spouse actually earns or holds the family income. A spouse who abandons the family cannot escape liability for household debts, and the spouse left at home cannot be denied credit for ordinary living expenses. This rule sits alongside section 15 in making the joint estate’s exposure broad, and it is the reason commercial creditors are typically willing to extend credit to a spouse married in community without taking security from both.

How the Court Can Reach Excluded Assets (Section 20)

Under section 20 of the Matrimonial Property Act, a court can order that an excluded asset be sold to satisfy a judgment creditor of the joint estate in the circumstances defined by the section. The leading case law on section 20 limits its application to situations involving insolvency-like outcomes, not ordinary commercial disputes. In practice this means a properly excluded asset is well protected for ordinary debt exposure, but not absolutely immune — a spouse who treats an excluded asset as a permanent shield against creditors risks the section 20 remedy in narrow circumstances.

Joint Administration (Section 7)

Under section 7 of the Matrimonial Property Act, neither spouse may alienate, mortgage, or otherwise dispose of an immovable property or other major asset that forms part of the joint estate without the written consent of the other spouse. A sale or mortgage entered into without that consent can be set aside on application to court. The rule applies symmetrically — neither spouse can act alone on a major joint-estate asset, and a third party who deals with only one spouse does so at the risk of the transaction being unwound.

How to Leave the In-Community Regime

Once married in community of property, the only way out is a court application under section 21 of the Matrimonial Property Act. The court will grant the application only on substantive grounds after considering factors listed in the section (sound reasons, fairness to creditors, and the best interests of minor children). Section 21 applications are by way of motion and are rarely granted in practice. Most couples who want out of the regime should have signed an antenuptial contract before the wedding in the first place.

Antenuptial Contracts as the Practical Alternative

An antenuptial contract (ANC) is the cleanest way to keep assets outside the joint estate, with or without the accrual system (out of community of property with accrual, or out of community without accrual). An ANC must be signed before the marriage and registered in a Deeds Registry within the prescribed period afterwards. Once out of community of property, each spouse keeps their own estate, and they can still marry under the accrual system if they want a sharing element on dissolution of the marriage. Many couples default to in-community because signing an ANC requires the time and cost of a notary and a Deeds Registry filing — but for anyone with pre-marital assets, a family business, or exposure to creditors, the ANC is the standard answer.

Burger Huyser Attorneys’ Family Law practice drafts antenuptial contracts and advises on matrimonial-property planning across its Gauteng branches, with the Family Law and Commercial Law practices jointly handling the work and a Notary and Conveyancer on staff attending to the notarial execution and Deeds Registry filing.

Comparison: Three Marriage Regimes at a Glance

Aspect	In Community of Property	Out of Community with Accrual	Out of Community Without Accrual
Requires ANC?	No (default regime)	Yes	Yes
Asset pool on date of marriage	All assets of both spouses merge into one joint estate	Each spouse keeps own estate	Each spouse keeps own estate
Growth during marriage	All growth and income flows into joint estate	Accrual (net growth) is shared on dissolution; each estate keeps its own starting value	Each spouse keeps everything they earn, inherit, or receive during the marriage
Liabilities	Joint and several liability for joint estate debts (section 15)	Each liable for own debts; accrual claim not accessible to creditors during marriage	Each liable for own debts only
Income from excluded assets	Governed by sections 2 and 3	Not applicable — there is no joint estate	Not applicable — there is no joint estate
Best suited to	Couples with no pre-marital assets and shared ambitions	Couples who want a sharing element with start-value protection	Couples with substantial separate estates or family businesses
Can be undone after marriage?	Only by court application under section 21 (rarely granted)	Only by court application under section 21	Only by court application under section 21

Frequently Asked Questions

What is excluded from marriage in community of property in South Africa?

Under section 2 of the Matrimonial Property Act 88 of 1984, four categories fall outside the joint estate: assets a spouse brought into the marriage and excluded by an ante- or post-nuptial contract; inheritances specifically excluded by the testator in the will; donations from third parties specifically excluded by the donor in the donation document; and assets excluded by any other law. Income and profits from excluded assets also fall outside the joint estate only if the donor or testator expressly excluded them under section 3. Anything that does not fit one of those four categories forms part of the joint estate by default.

Does inheritance automatically become part of the joint estate in community of property?

Not automatically — but it does by default unless the testator specifically excluded it in the will. Section 2(b) protects an inheritance from the joint estate only if the will contains an express exclusion clause. If the will is silent, the inheritance (and the income it generates unless separately excluded) flows into the joint estate and the other spouse acquires a one-half share. This is one of the most commonly missed points in estate planning — drafting the will with an exclusion clause is essential if the testator wants to keep the inheritance with one spouse only.

Does my salary form part of the joint estate?

Yes. A spouse’s salary, wages, and earnings during the marriage form part of the joint estate by operation of law. The same applies to rental income, interest, and dividends from any asset that is itself part of the joint estate. Only income from a properly excluded asset (and only if the donor or testator excluded the income as well) sits outside the joint estate.

Can I keep my inheritance if I marry in community of property?

Only if the will specifically excludes it. A clause along the lines of “I bequeath X to Y, to be excluded from any community of property that may exist between Y and their spouse” is the standard drafting. Without that clause, the inheritance falls into the joint estate and your spouse acquires a half-share on divorce or death. The same rule applies to donations from third parties.

Can my spouse’s creditors reach my inheritance?

Generally no — but it depends on whether the inheritance is actually excluded from the joint estate in the first place. If the testator’s will contains a proper exclusion clause under section 2(b), the inheritance is excluded from the joint estate, but section 20 allows a court to order it sold in narrow circumstances to satisfy a creditor of the joint estate. If the inheritance was not properly excluded, it forms part of the joint estate and section 15 makes both spouses jointly and severally liable for the joint estate’s debts, so creditors can attach it.

What happens to my pre-marital assets if I marry without an antenuptial contract?

Without an antenuptial contract, you marry in community of property by default, and your pre-marital assets merge into the joint estate — they no longer belong to you alone, and your spouse automatically acquires a one-half share. The only way to keep them outside the joint estate is an antenuptial contract (ANC) signed before the marriage and registered in a Deeds Registry within the prescribed period afterwards. A post-nuptial contract (signed after the marriage) has limited effect and does not retroactively take assets out of the joint estate.

Can my spouse sell our house without my consent?

No. Under section 7 of the Matrimonial Property Act, neither spouse may alienate, mortgage, or otherwise dispose of an immovable property (or other major asset) that forms part of the joint estate without the written consent of the other spouse. A sale without consent can be set aside on application to court.

Can I get out of the in-community regime after the wedding?

Only by a court application under section 21 of the Matrimonial Property Act, which the court will grant only on substantive grounds after considering fairness to creditors and the best interests of minor children. These applications are rarely granted and are not a practical escape route — couples who want out of the regime should sign an ANC before the wedding.

Is an engagement ring excluded from the joint estate?

Not automatically. Under the current Matrimonial Property Act, an engagement ring received before or during the marriage forms part of the joint estate unless (a) it was received before the marriage and the spouse signed an ANC excluding it, or (b) it was received during the marriage as a donation from a third party and the donor expressly excluded it. Gifts between spouses during the marriage do not change the regime.

Are personal injury damages excluded from the joint estate?

Generally no. Damages for loss of earning capacity and out-of-pocket expenses (special damages) form part of the joint estate. General damages for pain and suffering are treated more flexibly in case law but generally also flow into the joint estate. The exception is where damages are awarded under a statute that specifically protects them, or where they fall under section 2(d) as excluded by another law.

If you are about to get married and want to understand your options — in community of property, out of community with accrual, or out of community without accrual — Burger Huyser Attorneys’ Family Law team drafts and registers antenuptial contracts across its Gauteng branches. Initial consultations are booked through the Linden head office on 011 888 0246 (after-hours 061 516 6878) or via any of the branch numbers listed above. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is a recognised Family Law practice (Best Family Law Firm 2024 — Lawyers Monthly Legal Awards; Family Law Firm of the Year 2024 — MEA Business Awards).