Without Accrual - Marriage Out of Community of Property without implementation of the accrual system.
In South African law, choosing a matrimonial property regime is a significant financial decision that dictates how assets and liabilities are managed during and after a marriage. For many couples who marry without an antenuptial contract, the law automatically deems them married in community of property, creating a single joint estate. However, Section 21(1) of the Matrimonial Property Act 88 of 1984 provides a legal mechanism to change this regime to one out of community of property without accrual through a High Court application.
Defining the "Without Accrual" Regime
Marriage out of community of property without the accrual system is considered the most independent financial arrangement available to couples. Under this regime, the respective estates of the spouses remain entirely separate throughout the union.
To implement this choice postnuptially, the parties must execute a contract where they specifically declare that the Accrual system as set out in the Matrimonial Property Act will not be applicable to their marriage and will specifically be excluded. The legal consequences of this exclusion are absolute:
• Asset Ownership: Everything that belonged to either party before the marriage, and everything acquired during the marriage, remains their exclusive property.
• Liability and Debt: Spouses are only responsible for their individual debts; creditors of one spouse generally cannot target the assets of the other.
• No Sharing of Growth: Unlike the accrual system, there is no sharing of wealth accumulated during the marriage upon its dissolution by death or divorce.
The Necessity of the Section 21(1) Process
Because South African law generally follows the "immutability principle"—meaning the property regime is fixed at the time of marriage—couples cannot simply sign a private agreement to change their status. They must jointly apply to the High Court for permission to execute a postnuptial contract.
The court will only authorise this transition if the spouses satisfy three core statutory requirements:
1. Sound Reasons: The couple must provide convincing and valid justifications for the change, such as protecting assets from business risks or correcting a previous lack of legal knowledge.
2. Sufficient Notice: Notice of the intention to change the regime must be published in the Government Gazette and two local newspapers at least two weeks before the hearing. Additionally, all known creditors must be notified via registered post.
3. No Prejudice: The court must be satisfied that the change will not financially disadvantage any third party or creditor.
Why Couples Choose "Without Accrual"
Transitioning to a regime that excludes accrual is often motivated by a desire for total commercial freedom and financial insulation.
• Business Autonomy: Spouses can enter into commercial transactions, buy property, or incur business debt without the written consent of their partner.
• Asset Protection: This regime is ideal for entrepreneurs or professionals in high-risk fields, as it allows them to shield personal family assets (like a residential home) from business creditors by keeping them in the name of the lower-risk spouse.
• Second Marriages and Blended Families: For those with children from previous relationships or significant independent wealth, it provides a clear way to preserve inheritances and pre-existing legacies without them being mixed into a joint or shared growth estate.
Risks a
The primary disadvantage of excluding accrual is that it offers no financial protection for a spouse who may have sacrificed career growth to provide non-economic support, such as raising children or managing the household.