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In this guide
- In community of property: the default
- Out of community WITH accrual: the modern default-by-choice
- Out of community WITHOUT accrual: total separation
- Divorce consequences by regime
- Death consequences by regime
- Changing regimes after marriage
- Frequently asked questions
- Speak to an Attorney Today
- Get help with this
By Onah Attorneys Inc • Updated July 2026 • Legal information, not a substitute for advice on your specific matter.
Your matrimonial property regime decides who owns what, who owes what, and what happens at divorce or death — yet most couples choose it by accident, by simply signing the marriage register without an antenuptial contract. This guide explains the three regimes in plain language, with the real-world consequences we see in divorces and deceased estates every week.
In community of property: the default
Marry without an ANC and the law merges everything into one joint estate — assets AND debts, past and future, shared 50/50. Both spouses’ consent is needed for major transactions; one spouse’s insolvency takes the whole estate down; creditors of one can execute against the joint home. It costs nothing upfront and can cost everything later — it is the regime of most contested divorces.
Out of community WITH accrual: the modern default-by-choice
An ANC with accrual keeps estates separate during the marriage — separate assets, separate debts, creditor protection — but shares the GROWTH fairly at dissolution: the spouse whose estate grew less has a claim for half the difference. Starting values are declared in the contract; inheritances and declared exclusions stay out. For most couples, this is the balanced choice.
Out of community WITHOUT accrual: total separation
Each spouse keeps their own estate entirely — no sharing of growth, ever. Clean for second marriages, established professionals and business owners with existing structures, but harsh for a spouse who sacrifices a career for the household: no automatic claim on the other’s growth, only maintenance remedies. Choose deliberately, not defensively.
Divorce consequences by regime
In community: the joint estate is divided 50/50, including businesses and pensions, with forfeiture claims possible for substantial misconduct. Accrual: each keeps their own, then the accrual claim equalises growth — pension interests count. No accrual: each walks with their own; redistribution claims are now possible in some pre-1984 style circumstances following recent Constitutional Court jurisprudence — advice is essential.
Death consequences by regime
In community: the survivor automatically owns half the joint estate; the deceased’s half devolves by will or intestacy — which can force sales of the family home in badly planned estates. Separate regimes: the deceased’s estate is their own; the survivor claims accrual (if applicable), maintenance under the Maintenance of Surviving Spouses Act, and inherits per the will. Your will and your regime must be planned together.
Changing regimes after marriage
Married in community and regret it? A joint High Court application under Section 21 of the Matrimonial Property Act can change your regime — with notice to creditors, publication, and court approval. It costs multiples of what the ANC would have, which is the whole argument for signing one before the wedding.
Frequently asked questions
We married without an ANC — is it too late?
No: Section 21 of the Matrimonial Property Act allows a court-approved postnuptial change. It is costlier and slower than an ANC, but routinely granted.
Does my spouse’s debt affect me if we’re married with an ANC?
No — out of community, each spouse’s creditors can only attack that spouse’s estate. This is the core protection for entrepreneurs’ families.
Is accrual shared if we divorce after 2 years?
Yes — accrual applies whatever the marriage length; short marriages just have smaller growth to share.
Are foreign marriages recognised?
Generally yes, governed by the law of the husband’s domicile at marriage (a rule under constitutional pressure) — cross-border couples should take specific advice.
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