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Married in or out of community of property, and the accrual: what it means on divorce

The three ways of being married, how to tell which is yours, how an accrual claim is worked out line by line, and what each spouse can and cannot do with shared property.

Last updated:
14 November 2026
Checked against the law:
14 November 2026

The short answer

How you were married decides how property is treated on divorce. With no antenuptial contract you share one joint estate. With a contract that keeps the accrual, each of you keeps your own estate and the one whose estate grew less can claim half the difference in growth. With a contract that excludes the accrual, each of you keeps your own.

At a glance

No antenuptial contract
In community of property
One joint estate.
A contract, silent on accrual
Out of community, with accrual
Accrual applies unless the contract expressly excludes it (section 2).
A contract that excludes accrual
Out of community, without accrual
Each keeps their own estate.
Where to look
Your antenuptial contract
If you signed one, a notary drew it up before the wedding.

Which one is yours

  1. Did you sign an antenuptial contract before you married?

    Who:
    You
  2. Does the contract expressly exclude the accrual system?

    Who:
    You, reading the contract
  3. Does the contract state what each of you started with?

    Who:
    You, reading the contract

How an accrual claim is worked out

The accrual is how much an estate's net value grew between the start of the marriage and its end. The spouse whose estate grew less has a claim for half the difference (sections 3 and 4).

Accrual, line by lineExample, invented figures
Thandi
Net estate todayR2 100 000
Less an inheritance from her mother− R300 000
Less her starting value, adjusted for inflation− R300 000
Thandi's accrualR1 500 000
Sipho
Net estate todayR700 000
Less his starting value, adjusted for inflation− R100 000
Sipho's accrualR600 000
The claim
Difference between the two accrualsR900 000
Sipho's claim against Thandi: half of itR450 000

Matrimonial Property Act, sections 3 to 6.

What is left out of an accrual (sections 4 and 5)

  • Inheritances, legacies and gifts received during the marriage, and what was bought with them, unless the contract or the giver says otherwise
  • Gifts between the two of you
  • Damages for pain and suffering, as opposed to financial loss
  • Assets the contract itself excludes

How the starting value is fixed (sections 4 and 6)

  • The value declared in the contract or a notarial statement is taken as correct unless disproved
  • It is adjusted for the change in the value of money, using the consumer price index
  • If nothing was declared, the starting value is taken to be nil unless the opposite is proved
  • If debts exceeded assets at the start, it is nil

In community of property: who can do what

Either spouse can deal with the joint estate alone, with the exceptions below (section 15).

  • Written consent, with two witnesses

    Section 15(2) and (5)

  • Written consent

    Section 15(2)

  • Consent

    Section 15(3)

  • If consent is refused

    Section 16

Debts. A debt that can be recovered from the joint estate can be claimed from the spouse who incurred it, or from both of you together. For household necessaries, either or both of you can be sued (section 17(5)).

What a court can do

  • Divide early

    Sections 8 and 20

  • Give time to pay

    Section 10

  • Order forfeiture

    Section 9; Divorce Act section 9

  • Redistribute

    Divorce Act section 7(3)

  • Let you change system

    Section 21

What goes wrong

  • No starting value was ever declared

    Worth checking: your contract, and whether a separate statement was signed within six months of the wedding.

  • An inheritance has been mixed into everything else

    Worth checking: what records show where the inherited money went.

  • Not asking for the figures

    Worth checking: whether you have asked, in writing, for full particulars of the other estate.

  • Assets being moved or run down before the divorce

    Worth checking: what is happening to the property now, not at the end.

  • Signing surety or selling the house alone, in community

    Worth checking: whether the other spouse's written, witnessed consent exists.

What to gather

For any of the three systems

  • Your antenuptial contract and any notarial statement of starting values
  • A list of what each of you owns today, with a value for each item
  • A list of what each of you owes
  • Papers for any inheritance or gift: the will, the executor's letter, the bank transfer
  • A statement from every pension and retirement fund
  • The title deed and bond statement for any property

What this means for you

Two documents decide most of this: the antenuptial contract, and the record of what each of you started with. Find both before anything else.

Sources

Every legal statement in this guide comes from one of these. We checked each statement against its source. A legal practitioner has not reviewed this guide.

  1. Matrimonial Property Act 88 of 1984, sections 2 to 10, 14 to 17, 20 and 21 (consolidated to 3 April 2024)
  2. Divorce Act 70 of 1979, sections 7 and 9 (consolidated to 14 May 2024)
  3. General (Family) Laws Amendment Bill, B20-2025 (a Bill, not yet law)

Independent. Not a law firm. Legal information, not legal advice.