A marriage in community of property is the default marital regime in South Africa. When two people marry without first signing an antenuptial contract, the law automatically merges their separate financial lives into a single joint estate. From the date of the marriage there is no longer his property and her property in the eyes of our law, there is only the joint estate.
People often assume that certain categories of assets, such as an inheritance or a gift from a parent, must be excluded from that joint estate. The reality under the Matrimonial Property Act 88 of 1984 is the opposite. Almost everything a spouse owns or owes, whenever acquired, falls into the joint estate. The genuine exclusions are narrow and statutory, not a list of asset types you can choose to keep out.
This article sets out what the Act actually excludes, the asset categories that people wrongly believe are excluded, and the only reliable ways to exclude assets from a South African marital estate in the first place. Assets not divided in South Africa can lead to misunderstandings during divorce proceedings. Understanding how the law applies to these assets is crucial for anyone navigating marital separation. Many may not realize that certain assets, though seemingly joint, may not necessarily fall under the purview of division. Nonworking spouse rights in South Africa play a significant role in the financial outcome of a divorce. It is essential for both parties to understand their rights and obligations, especially regarding spousal support. Navigating these complexities can be challenging, but seeking professional legal advice can help clarify entitlements.
What a Marriage in Community of Property Actually Creates
Chapter III of the Matrimonial Property Act governs marriages in community of property. Section 14 gives each spouse equal powers over the joint estate, and section 15 sets out which acts require the other spouse’s written consent. The joint estate that results from this regime is sweeping in both directions: it pools assets and it pools liabilities.
The joint estate typically includes, with very few exceptions:
- The family home and any other immovable property, regardless of whose name is on the title deed.
- Vehicles, bank accounts, investments and shares, pension interests, and business interests.
- Household furniture and effects of the common household.
- Salary, bonuses, royalties, and other income earned by either spouse.
- Inheritances, legacies, donations and prizes that either spouse receives during the marriage.
- All debts and liabilities, including bonds, vehicle finance, credit agreements, and suretyships, whenever they were incurred.
Section 15(3)(b)(iii) of the Act is particularly revealing. It provides that a spouse may not, without the other’s consent, receive money accruing to the other spouse by way of an inheritance, legacy, donation, bursary or prize. The reason consent is required at all is precisely because these amounts form part of the joint estate. They are not separate property by default.
The Short Answer: Almost Nothing Is Excluded
The honest answer to the question “what is excluded from a marriage in community of property?” is: very little. The defining feature of this regime is that the joint estate is universal. Any framework that lists inheritances, donations, pre-marital assets, or business interests as automatic exclusions is describing the wrong marital regime. Those exclusions belong to a marriage out of community of property under an antenuptial contract, not to a marriage in community of property.
The genuine exclusions recognised by the Act are narrow and specific. They fall into three broad categories.
The Statutory Exclusion: Non-Patrimonial Damages Under Section 18
The clearest exclusion is found in section 18 of the Act. This section provides that, despite the marriage being in community of property, certain damages recovered by a spouse do not fall into the joint estate. They become the separate property of the spouse who received them.
Section 18(a) covers damages, other than damages for patrimonial loss, recovered by a spouse because a delict (a civil wrong, such as a defamation or a bodily injury claim for pain and suffering) was committed against them. These non-patrimonial damages, sometimes called general damages, cover things like emotional shock, loss of amenities of life, and disfigurement. They belong to the injured spouse personally.
Section 18(b) allows a spouse to recover damages from the other spouse for bodily injuries caused by that other spouse’s fault. Those damages also fall outside the joint estate and become the separate property of the injured spouse.
Outside this narrow statutory carve-out, damages for patrimonial loss, such as a loss of earnings claim flowing from the same injury, do form part of the joint estate. The line the Act draws is between personal, non-finetary harm and quantifiable financial loss.
Delictual Liability and the Joint Estate Under Section 19
Section 19 of the Act works in the opposite direction. When a spouse commits a delict and becomes liable to pay damages, including non-patrimonial damages, those damages and any costs awarded against that spouse are recoverable first from that spouse’s separate property rights, if any exists. It is only insofar as that spouse has no separate property that the joint estate can be touched.
Even then, where an amount is recovered from the joint estate, the Act requires an adjustment in favour of the innocent spouse when the joint estate is later divided. This protects the non-responsible spouse from effectively carrying the other spouse’s personal wrongdoing.
What About Inheritances, Donations and Gifts?
This is the most common source of confusion. Many spouses arrive at our Sandton office convinced that the house they inherited from their late father is “separate property” because it came to them by blood and not by marriage. In a marriage in community of property, that assumption is wrong.
Under section 15(3)(b)(iii), an inheritance, legacy, donation, bursary or prize received by either spouse during the marriage is administered as part of the joint estate. The assets are pooled with everything else and divided equally on divorce or on death. The same applies to gifts between spouses and to donations from third parties.
The confusion usually arises because section 5 of the Act does exclude inheritances, legacies and donations from the accrual calculation. Section 5. Sits in Chapter I, which applies only to marriages out of community of property subject to the accrual system. It has no application to a marriage in community of property. If you are married in community of property and want an inheritance to remain your separate property, the testator would have to structure the bequest through a separate legal mechanism, such as a testamentary trust, that keeps the asset out of your personal estate entirely.
Court Orders That Can Remove Assets From the Joint Estate
The Act gives the court two powers that can move assets out of the joint estate during the marriage, even where the spouses did not sign an antenuptial contract.
Section 20 allows a court, on the application of one spouse, to order the immediate division of the joint estate where that spouse’s interest is being or will probably be seriously prejudiced by the conduct of the other spouse. The court can replace the community of property regime with another matrimonial property system going forward. This is a powerful but exceptional remedy, typically used where one spouse is dissipating or alienating assets.
Section 21 allows both spouses to jointly apply to court for leave to change their matrimonial property system altogether, for example to register a postnuptial contract that converts the marriage into one out of community of property. The court must be satisfied that there are sound reasons for the change, that sufficient notice has been given to all creditors, and that no third party will be prejudiced. The Registrar of Deeds then endorses the new system on the antenuptial contract.
The Only Reliable Way to Exclude Assets: An Antenuptial Contract
If excluding assets from a marital estate is genuinely important to you, the only dependable route is to marry out of community of property by way of an antenuptial contract (ANC), signed before a notary and registered in the Deeds Office before the date of the marriage.
An ANC can be drafted in two main forms:
- Out of community of property without the accrual system. Each spouse keeps their own estate entirely separate. There is no sharing of growth on divorce.
- Out of community of property with the accrual system. Each spouse keeps a separate estate during the marriage, but on divorce the spouse whose estate grew less acquires a claim for half of the difference in growth. Specific assets can be excluded from the accrual calculation in the contract itself.
Because section 5 of the Act excludes inheritances, legacies and donations from the accrual calculation by default, a marriage out of community with accrual is the regime that most people are actually describing when they think of inheritances being protected. The protection comes from the antenuptial contract, not from being married in community of property.
Practical Steps Before You Marry or Divorce
Whether you are still planning to marry or are already married in community of property and want to understand your position, a few practical steps matter:
- Confirm the marital regime on record at the Deeds Office before assuming anything.
- If you intend to exclude assets, sign and register an antenuptial contract before the marriage date. Once the marriage has been solemnised in community of property, you cannot simply sign an ANC retrospectively.
- If you are already married in community of property and want to change the regime, consider a section 21 application to court for a postnuptial change of system.
- If your spouse is prejudicing the joint estate, ask your attorney about a section 20 court order for its immediate division.
- Keep a clear, dated record of every asset and liability, including valuations, title deeds, and policy schedules, so that the joint estate can be identified and divided accurately if it ever has to be.
Otrebski Attorneys is a 100% women-led firm based in Sandton. Our Family Law department, led by Director Nastasja Otrebski, drafts antenuptial contracts, advises on the consequences of marriages in community of property, and represents spouses in division, forfeiture and postnuptial-change proceedings. We hold a Level 4 B-BBEE rating and currently carry a five-star average across 12 client reviews.
Frequently Asked Questions
Is an inheritance excluded from a marriage in community of property in South Africa?
No. In a marriage in community of property, an inheritance received by either spouse during the marriage forms part of the joint estate. Section 15(3)(b)(iii) of the Matrimonial Property Act 88 of 1984 confirms this by requiring the other spouse’s consent to receive it. The exclusion of inheritances under section 5 applies only to marriages out of community of property subject to the accrual system.
What assets are excluded from a joint estate in a community of property marriage?
Very few. Under section 18 of the Matrimonial Property Act 88 of 1984, non-patrimonial damages (such as damages for pain and suffering) recovered by a spouse, and damages recovered from the other spouse for bodily injuries, do not fall into the joint estate and become the separate property of the injured spouse. Almost every other asset, whenever acquired, forms part of the joint estate.
Are debts also shared in a marriage in community of property?
Yes. All liabilities of either spouse, whenever incurred, form part of the joint estate, and both spouses are jointly and severally liable. The narrow exception is delictual liability under section 19, where damages for a wrong committed by a spouse are first recoverable from that spouse’s separate property, if any.
Can a court order assets to be removed from the joint estate during the marriage?
Yes, in limited circumstances. Section 20 of the Act allows a court to order the immediate division of the joint estate where one spouse’s interest is being seriously prejudiced by the other’s conduct. Section 21 allows both spouses to jointly apply to court to change their matrimonial property system, for example by registering a postnuptial contract.
How do I exclude assets from my marriage before getting married?
By signing an antenuptial contract (ANC) before a notary and registering it in the Deeds Office before the date of the marriage. An ANC can exclude the accrual system entirely or exclude specific named assets from the accrual calculation. Once a marriage has been solemnised in community of property, an ANC cannot be signed retrospectively without a court order under section 21.
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Disclaimer. This article is general information for South African readers and is not legal advice. Matrimonial property law and the interpretation of the Matrimonial Property Act 88 of 1984 change over time, and outcomes depend on the specific facts of each matter. Please consult a qualified attorney at Otrebski Attorneys for advice tailored to your situation.