A marriage out of community of property is achieved by drawing up an antenuptial contract (ANC) prior to the parties marriage. One can either get married out of community of property INCLUDING the accrual or EXCLUDING the accrual.
Section 4(1)(a) of the Matrimonial Property Act 88 of 1984 indicates that, the accrual of the estate of a spouse is the amount by which the net value of the spouse’s estate at the dissolution of the marriage exceeds the net value of the spouse’s estate at the commencement of that marriage.
If your ANC includes the accrual system, each spouse will retain their property before marriage and share the growth of each other’s estates during the marriage.
On dissolution of the marriage by death or divorce, the value of the assets obtained during the marriage (the accrual) will be shared equally. The accrual is determined by calculating the difference in the nett starting value and the nett final value of the estate of each spouse with the exclusion of inheritances, legacies and donations. On dissolution of the marriage the value of the difference in the accrual of the two estates, taking inflation into account, is then divided equally.
During the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual.
by Bianca Meyer
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)