Antenuptial Contract without the Accrual System
The most separation-oriented option South African law allows. Two completely separate estates, no automatic sharing at the end of the marriage. The right choice for second marriages, business owners, and couples with significant existing wealth — with one important caveat following the Constitutional Court’s 2023 judgment in EB v ER.
What this regime actually is
This is a marriage out of community of property without the accrual system, regulated by section 2 of the Matrimonial Property Act 88 of 1984. The contract must specifically exclude the accrual system — otherwise accrual applies by default.
- Two separate estates — permanently. Each spouse keeps their own estate during the marriage and at the end of it.
- Each spouse liable only for their own debts. Creditors of one spouse cannot reach the other spouse’s estate.
- No automatic sharing on divorce or death. There is no joint estate to divide and no accrual to calculate.
Day to day during the marriage
Practically, a without-accrual contract feels almost identical to a with-accrual contract during the marriage. You each have your own bank accounts, own credit profile, own assets. You can each buy or sell property, take out loans, run businesses, sign leases — nobody needs anybody’s consent.
The difference reveals itself only at the end of the marriage. With accrual, the growth gets shared automatically. Without accrual, there is no automatic sharing — whatever is in your name on the day the marriage ends stays in your name.
Important: the EB v ER 2024 case-law update
For decades, a without-accrual contract was considered the airtight separation option: separate during, separate at the end, no court intervention possible. That is no longer entirely accurate.
In EB v ER 2024 (2) SA 1 (CC), the Constitutional Court declared section 7(3) of the Divorce Act unconstitutional to the extent that it limited the redistribution remedy to out-of-community marriages concluded before 1 November 1984. Pending Parliamentary remedy, the words “before the commencement of the Matrimonial Property Act, 1984” must be read as omitted.
The practical effect: the divorce court now has a discretion to order a just-and-equitable redistribution of assets in any without-accrual marriage, regardless of when the marriage was concluded. The court considers each spouse’s direct or indirect contribution to the maintenance or increase of the other spouse’s estate during the marriage.
Who chooses this regime
- Second marriages. Where each spouse already has children from earlier relationships and wants their estate to flow to those children intact.
- Family-business owners. Where exclusion clauses inside an accrual contract are not enough — the simplicity of separate estates aligns with trust or shareholding structures.
- Couples marrying later in life. Both arrived with built-up retirement plans, properties, and investments and prefer to keep finances entirely separate.
- Substantial inherited wealth or trust beneficiary status. Without accrual removes any future argument over what was and was not shared.
An example
Consider two people in their early 60s. He is a widower with two grown children and a paid-off home. She is divorced, with one daughter at university and a successful consulting business. They want to marry, share a life, travel — but each wants their own assets to flow to their own children eventually. A without-accrual contract is the natural starting point: there is no joint estate to unwind, no accrual to calculate, no claim against the other’s growth. Their estates remain separate, all the way through the marriage.
The three regimes side by side
| Feature | In community of property | Out of community WITH accrual | Out of community WITHOUT accrual |
|---|---|---|---|
| Legal document | None — default regime | Notarial antenuptial contract | Notarial antenuptial contract |
| Asset ownership | One joint estate — undivided half each | Two separate estates | Two separate estates |
| Debt and liability | Jointly liable | Each spouse liable for own debts | Each spouse liable for own debts |
| Contractual capacity | Limited — spousal consent required | Full autonomy | Full autonomy |
| Sharing on dissolution | 50/50 division of joint estate | Equal sharing of accrual | No automatic sharing — court has a discretion since EB v ER 2024 |
| Inheritances | Form part of joint estate unless excluded | Excluded from accrual by law | Remain with the inheriting spouse |
| Spousal maintenance | Discretionary under s. 7 Divorce Act | Discretionary under s. 7 Divorce Act | Discretionary under s. 7 Divorce Act |
| Best suited for | Couples wanting full economic sharing | Most first marriages | Second marriages, business owners, large existing estates |
How your contract is signed and registered
- Application. Complete the intake form, indicating that you want the accrual system excluded.
- Drafting. We draft the contract with the express exclusion of accrual under section 2 of the Matrimonial Property Act, and email it for review.
- Signing. The contract is signed before a notary public — in person at our Pretoria offices, or by power of attorney where travel is difficult.
- Registration. Lodged at the Deeds Office for registration within the three-month statutory window.
Frequently asked questions
Can the court redistribute assets despite a without-accrual contract?
Since EB v ER 2024 (2) SA 1 (CC), yes — the divorce court has a discretion under section 7(3) of the Divorce Act to order a just-and-equitable redistribution where one spouse contributed (directly or indirectly) to the other’s estate. The remedy is discretionary, not automatic. The spouse claiming it must establish a basis for the discretion. But it is no longer ruled out by the date of the marriage.
Does it protect us from each other’s creditors?
Yes. Each spouse has their own estate; one spouse’s creditors cannot claim against the other’s assets. This is one of the principal practical reasons for choosing this regime.
What about a property we buy together?
You can register property in joint names, in undivided shares (50/50, 70/30, or any split). The deed reflects the ownership; the antenuptial contract simply sets the default that everything else stays separate.
Is “without accrual” the same as “complete separation of property”?
Yes — the two phrases are used interchangeably. The legal label is “out of community of property without accrual”. With the qualification, post-EB v ER, that the court has a discretion to redistribute in appropriate cases.
Can we add accrual back in later?
Yes, by section 21 High Court application. Both spouses must consent and creditors must not be prejudiced. It is more involved than signing a fresh contract before the wedding.
Sign your antenuptial contract without accrual
R1,950 all-inclusive. Drafting, notary attendance, and Deeds Office registration. Practising since 1995.