Marital regimes

June (4)
The big question has been asked and with great excitement you are exchanging wedding ideas.  The who, where and when are a part of your daily discussions and the last thing on either of your minds is probably which marital regime will be best suited to your marriage.  Many couples are also of the view that they don’t need to consider this and say that “they will never get divorced.”  The reality is that an antenuptual contract is not only of effect if a couple gets divorced, but it also protects their assets during their marriage.

There are three marital property regimes in South Africa.  It is important to make an informed decision before entering into a marriage.

1. Married in community of property

Should a couple not enter into an antenuptual contract before they get married then their marriage will automatically be in community of property.  This means that their separate estates (including all their assets and liabilities) will be joined and they will become co-owners of the joint estate.  Assets that will not form part of the joint estate include marital gifts to a specific spouse, benefits received from a will or deed of donation which specifically indicate that such assets will not form part a joint estate, as well as compensation received from a delictictual claim.  One of the disadvantages of this regime is that should one of the spouses be sequestrated; then the sequestration order will automatically bind the joint estate.

Both spouses must consent in writing for certain acts, for example the selling of a house they co-own.  A spouse can act without the consent of the other spouse when for example he/she is acting in the ordinary course of business of that spouse.

2. Married out of community of property without the accrual system:

If parties elect to be married out of community of property without the application of the accrual system then their contract must specifically exclude the accrual system.  Should they elect this property regime then each spouse will remain the exclusive owner of the assets acquired by that spouse before and after their marriage.  Each spouse will also be solely liable for debts incurred by that spouse before and during their marriage.  In other words the system of “what is yours is your and what is mine is mine” will apply.  The spouses will not need each other’s permission for the management, alienation or encumbrance of their respective exclusive properties.

3. Married out of community of property with the accrual system:

The accrual system was incorporated in our legal system in 1984 with the commencement of the Matrimonial Property Act 88 of 1984.  When parties are married out of community of property with the application of the accrual, as in the case of a marriage out of community of property without the application of the accrual, the above-mentioned system of “what is yours is yours and what is mine is mine” will apply during the marriage.  However at the end of the marriage, whether by death or divorce the accrual (growth) of both party’s estate must be determined and the growth is then split equally between the two spouses.

This principle can be better explained by way of the following example:


It is extremely important that a couple obtains expert advice before they get married to discuss the different marital property regimes before choosing the regime that will be applicable to their marriage.

This article is a general information sheet and should not be used or relied on as 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 financial adviser for specific and detailed advice.





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IC Marais

Professional experience:

IC Marais is a certified CA (SA) with public sector and private sector technical knowledge based on 5 years’ Public Sector accounting, auditing and financial management experience and 5 years audit, tax and accounting experience. Detailed knowledge of private and public sector accounting and auditing standards (GRAP, IPSAS, IFRS, IAS, ISA) and public sector financial legislation (MFMA, etc.)

He enjoys the outdoors, hunting and fishing.


Professional experience:

In 1995, Schalk started as a trainee at Warner and Newton (which became Moores Rowland in 1997 and then Mazars Moores Rowland in 2007) in Bloemfontein. In 1998, Schalk was appointed as manager at Moores Rowland, where he became a partner in 2003. Schalk received his Postgraduate Certificate in Advanced Taxation in 2006 and in 2009 he received his Certificate in the Administration of Estates.


Professional experience:

Cedric started as a trainee at Warner and Newton (which became Moores Rowland in 1997 and Mazars Moores Rowland in 2007), Bloemfontein, in 1986. After completion of his articles, he joined the Special Investigations Division of the Department of Finance (SA Revenue Services) as a senior inspector from 1990 to 1991.


Professional experience:

Lucha started her career as a tax inspector at the Inland Revenue Department of New Zealand. After this she worked in commerce in Canada, Mexico and the United States.

On her return to South Africa, she completed her CA training contract with us and has been with Newtons ever since. She became a Partner in 2012.

Apart from her CA(SA) qualification she also holds a postgraduate certificate in Advanced Taxation (2005) and has the overall responsibility for training as our Training Officer.