Getting married out of community of property in South Africa is a deliberate legal choice, not something that happens automatically. To achieve it, a couple must sign an antenuptial contract before the marriage is solemnised. Without that contract, South African law defaults to a marriage in community of property, which merges both spouses’ estates into one joint estate.
The Matrimonial Property Act 88 of 1984 governs antenuptial contracts and the matrimonial property regimes in South Africa. It sets out the requirements for a valid out-of-community marriage, including the involvement of a notary public and registration at the Deeds Office. Understanding these steps before the wedding date gives a couple time to make informed decisions about their financial future.
What out of community of property actually means
In an out of community of property marriage, the property ownership rules dictate that each spouse keeps a separate estate. Assets and liabilities that a person brings into the marriage remain theirs, and assets and debts acquired during the marriage likewise remain with the spouse who acquired them. There is no joint estate, and one spouse is not automatically liable for the other’s debts.
This structure is governed by the Matrimonial Property Act 88 of 1984. The Act recognises two forms of out of community marriage: one that includes the accrual system and one that excludes it. The choice between them is recorded in the antenuptial contract and has long-term consequences for how wealth is shared if the marriage ends through divorce or death.
Out of community with accrual versus without accrual
The accrual system is the middle ground between full community of property and complete financial separation. When a couple marries out of community of property with accrual, each spouse keeps control of their own estate during the marriage, but when the marriage ends they share the growth (the “accrual”) in those estates from the date of marriage to the date of dissolution.
Without accrual, there is no sharing of growth at all. Each spouse walks away with exactly what is in their own name. This option offers the strongest financial independence, but it can produce harsh outcomes where one spouse gave up a career to raise children or run the household. The Department of Justice and Constitutional Development publishes guidance on these regimes, and the accrual calculation is regulated by statute.
- With accrual. Separate estates during the marriage, with a statutory sharing of the growth in those estates when the marriage ends. Assets can be excluded by name in the contract, and an initial value is recorded for each spouse.
- Without accrual. Total separation. No sharing of growth, and no claim to the other spouse’s estate by virtue of the marriage itself. Creditors of one spouse cannot reach the other spouse’s assets.
- Default if no ANC is signed. A marriage in community of property, with one joint estate shared equally between the spouses.
Why the antenuptial contract must be signed before the marriage
Timing is the single most important requirement. An antenuptial contract must be executed before the marriage is solemnised. “Antenuptial” literally means “before the marriage”. A contract signed after the wedding has no effect on the matrimonial property regime, because the regime is fixed on the date of marriage.
If a couple marries without an ANC and later wants to be out of community, their only route is a postnuptial application to the High Court under section 21(1) of the Matrimonial Property Act. That application is not guaranteed, requires notice to creditors, and is far more expensive and uncertain than signing an ANC before the wedding. Planning ahead avoids this entirely.
Step by step: how to get married out of community of property
The process is sequential, and each step must be completed in order. Leaving a step until after the wedding will not work.
- Step 1: Get legal advice early. Speak to a family law attorney weeks, not days, before the wedding. The attorney will explain the difference between accrual and no accrual, help you decide which fits your circumstances, and identify assets you may want to exclude from the accrual calculation.
- Step 2: Draft the antenuptial contract. The attorney drafts the ANC to record the chosen regime, the commencement value of each spouse’s estate, and any specifically excluded assets. The wording matters, because ambiguous clauses are interpreted against the drafter.
- Step 3: Sign before a notary public. Both spouses must sign the ANC in the presence of a notary public, who is an admitted attorney with an additional notarial practice certificate. The notary witnesses the signatures and prepares the contract for registration.
- Step 4: Register the ANC at the Deeds Office. The notary lodges the ANC for registration at the Deeds Office. Registration must take place within the prescribed time, and the contract only takes effect once registered.
- Step 5: Marry. With the ANC signed and lodged, the couple may solemnise the marriage before a marriage officer, such as a Home Affairs official, a magistrate, or a recognised religious officer. The marriage is then registered with the Department of Home Affairs.
- Step 6: Keep the original safe. The original registered ANC is a vital document. Store it securely and keep certified copies, as it will be needed for property purchases, estate planning, and any future divorce proceedings.
Common mistakes to avoid
The most common mistake is leaving the ANC until the last week before the wedding. Drafting, signing, and lodging take time, and a delay at the Deeds Office can derail a wedding date. Another common error is signing an off-the-shelf ANC without considering whether accrual should apply or whether specific assets should be excluded.
Couples also frequently confuse a religious marriage certificate with a civil one. For the matrimonial property regime to be recognised as out of community, the ANC must be in place before the civil marriage is registered. A separate religious ceremony does not alter this requirement.
Frequently Asked Questions
What is the difference between out of community with accrual and without accrual?
Out of community with accrual keeps each spouse’s estate separate during the marriage but shares the growth in those estates when the marriage ends. Out of community without accrual keeps the estates fully separate, with no sharing of growth at all. The choice is recorded in the antenuptial contract under the Matrimonial Property Act 88 of 1984.
Does an antenuptial contract have to be signed before the marriage?
Yes. An antenuptial contract must be signed before a notary public and lodged at the Deeds Office before the marriage is solemnised. The matrimonial property regime is fixed on the date of marriage, so an ANC signed after the wedding has no effect. Changing the regime afterwards requires a postnuptial court application under section 21 of the Matrimonial Property Act.
Where is an antenuptial contract registered in South Africa?
An antenuptial contract is registered at the Deeds Office. The notary public who witnesses the signatures lodges the contract for registration within the prescribed time. The contract only takes effect once it is registered.
Can I change from in community to out of community after we are married?
It is possible but not automatic. A spouse must apply to the High Court under section 21(1) of the Matrimonial Property Act 88 of 1984 to change the matrimonial property regime after marriage. The court must be satisfied that there are sound reasons, that creditors will not be prejudiced, and that notice requirements are met.
Does out of community of property protect me from my spouse’s debts?
Generally yes. In an out of community marriage each spouse has a separate estate, and the creditors of one spouse cannot reach the assets of the other spouse by virtue of the marriage alone. This is one of the main reasons couples choose an antenuptial contract.
Do I need a lawyer to draft an antenuptial contract?
An antenuptial contract must be signed before a notary public, who is a qualified attorney, so lawyer involvement is a practical requirement rather than an optional extra. A family law attorney ensures the ANC reflects the correct regime, records excluded assets where applicable, and is properly lodged at the Deeds Office.
Get help with your antenuptial contract. The Family Law team at Otrebski Attorneys drafts and registers antenuptial contracts for couples marrying in South Africa. As a 100% women-led firm with a single office in Sandton, a 5-star Google rating across 12 reviews, a Level 4 B-BBEE rating, and Director Nastasja Otrebski at the helm, the team will guide you through the choice between accrual and no accrual and ensure your ANC is validly executed before your wedding. When considering the legal implications of your marriage, understanding divorce laws in South Africa is essential. These laws govern the dissolution of marriage and can significantly impact both parties involved. Obtaining legal advice early can help you navigate these complexities effectively.
Call 060 500 3098 or book an appointment with our Family Law team.
Disclaimer. This article is general information on getting married out of community of property in South Africa and is not legal advice. For guidance on a specific matter, confirm current requirements with the Deeds Office, the Department of Justice and Constitutional Development, or a qualified family law attorney. The relevant law includes the Matrimonial Property Act 88 of 1984 and the Deeds Registries Act 47 of 1937, all of which may be amended. Customary marriage laws in South Africa play a significant role in how marriages are recognized and governed. These laws not only respect cultural practices but also ensure that the rights of all parties are protected. Understanding these laws is essential for individuals entering into a customary marriage.