Marriages concluded in South Africa are regulated by our common law, such marriages are known as marriages in community of property, however, our law affords parties the opportunity to contract out of the common law by virtue of an antenuptial contract which may include or exclude the accrual system. Parties entering marriage may choose to marry either:
1. In community of property;
2. Out of community of property with accrual alternatively
3. Out of community of property.
In this instance the two separate estates, inclusive of assets and liabilities, of the parties are joined and shared equally irrespective of when these assets and/or liabilities were acquired, be it prior or during the marriage, unless expressly excluded by a donor/testator. Upon the dissolution of the marriage, be it caused through divorce or death, the parties have an equal share in the joint estate.
Each party may incur liability and has the right to dispose of the joint estate assets, however, consent and in some instances even written consent is required from the other party. While there is financial equality, juristic equality is not afforded to the parties.
The parties in this instance enter into a contract prior to their marriage whereby the accrual of their estates is declared. The parties further agree, that upon the dissolution of the marriage, be it caused through divorce or death, that they will share the difference of their nett estates, the sum of their liabilities and assets, which they accrue during their marriage, unless expressly excluded by a donor/testator. The estate values, taking inflation into account, are determined separately with the larger estate transferring half of the nett difference to the smaller estate.
In this instance juristic equality is afforded to the parties entering into the antenuptial contract in that each party has full right of disposal of his/her own assets without the need for consent from the other party.
The parties in this instance enter into a contract prior to their marriage and expressly exclude community of profit and loss and thereby exclude the accrual system. In the absence of this exclusion the rules of the accrual system will automatically apply. Upon the dissolution of the marriage, be it caused through divorce or death, each party maintains control over his/her own estate and its assets/liabilities.
In this instance there is no financial equality as each party retains his/her assets and liabilities whether acquired before or during the marriage. Both parties have full and independent contractual capacity.