Antenuptial Contract with the Accrual System
The most common antenuptial contract in South Africa, and for good reason. Each spouse keeps a separate estate during the marriage; at the end, the growth built up over the years is shared equally. Independence and protection while you are married, fairness when the marriage ends.
What this regime actually is
This is a marriage out of community of property with the accrual system, governed by Chapter 1 of the Matrimonial Property Act 88 of 1984. Practically, it means:
- Two separate estates during the marriage. Each spouse keeps their own assets, manages their own affairs, and is liable only for their own debts.
- No spousal-consent requirements. Either spouse can buy or sell property, sign contracts, run a business, or take out credit without the other’s signature.
- Equal sharing of growth at the end. When the marriage ends — by divorce or by death — the growth (the accrual) of each spouse’s estate is calculated and equalised.
If your antenuptial contract does not specifically exclude the accrual system, it includes accrual by default.
How the accrual is calculated
The mechanism is straightforward once you see the four steps:
- Net commencement value. Each spouse declares the value of their estate on the date of marriage in the antenuptial contract. Liabilities are subtracted from assets to give a net figure. If you declare zero (or no figure at all), the law treats the commencement value as zero.
- CPI adjustment. When the marriage ends, the declared commencement value is adjusted upwards using the Consumer Price Index, so it keeps its real value over time.
- Calculate the accrual. Each spouse’s current net estate (assets minus liabilities) is determined. The CPI-adjusted commencement value is subtracted. The result is that spouse’s accrual.
- Equalise. The two accruals are compared. The spouse with the smaller accrual has a claim against the spouse with the larger accrual for half the difference.
An asset specifically excluded in the antenuptial contract — or excluded automatically by the Act (inheritances, donations, certain damages) — does not form part of the accrual.
A worked example
Take a couple in their early thirties, married for ten years. Inflation has roughly doubled prices over that period (CPI factor of 2).
| Step | Spouse A | Spouse B |
|---|---|---|
| Net commencement value | R400,000 | R30,000 |
| CPI-adjusted (factor 2) | R800,000 | R60,000 |
| Net estate at dissolution | R3,000,000 | R260,000 |
| Accrual (current minus adjusted) | R2,200,000 | R200,000 |
The difference between the two accruals is R2,000,000. Spouse B has a claim against Spouse A for half of that difference — R1,000,000. The wealth built during the marriage is shared equally, even though it sits in Spouse A’s name.
What gets excluded automatically
The Matrimonial Property Act excludes four categories of assets from the accrual by operation of law:
- Inheritances received during the marriage, unless the testator’s will specifically directs that they should form part of the accrual.
- Donations received from third parties during the marriage, on the same basis.
- Assets acquired with excluded assets (the principle of substitution): if you sell an inherited home and buy another one with the proceeds, the new one is excluded too.
- Damages for personal injury — non-patrimonial damages awarded for pain, suffering, and similar.
Beyond these statutory exclusions, the parties can list specific assets in the antenuptial contract itself that they agree should be excluded from the accrual — a family business, a particular property, a retirement fund, an investment portfolio. We discuss your circumstances when drafting and recommend exclusions where they protect a legitimate interest.
Who chooses this regime
The vast majority of South African couples signing an antenuptial contract pick the with-accrual option. It suits in particular:
- First marriages where neither party has substantial existing wealth.
- Couples building a life and assets together, where both view the marriage as a partnership but want financial independence.
- Business owners who need to operate without spousal-consent friction, while still sharing the fruits of their labour fairly.
- Couples who want to be protected from each other’s debts — a real risk under in community of property.
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; creditors of either spouse can attach the joint estate | Each spouse liable for their own debts only | Each spouse liable for their own debts only |
| Contractual capacity | Limited — spousal consent required for certain transactions (s. 15 MPA) | Full autonomy | Full autonomy |
| Sharing on dissolution | 50/50 division of the joint estate | Equal sharing of the accrual of each estate | No automatic sharing* |
| Inheritances | Form part of the joint estate unless excluded by will | Excluded from the accrual by operation of law | Remain the property of the inheriting spouse |
| Spousal maintenance | Discretionary under s. 7 of the Divorce Act | Discretionary under s. 7 of the Divorce Act | Discretionary under s. 7 of the Divorce Act |
| Best suited for | Couples wanting full economic sharing — rare for couples with credit or business exposure | Most first marriages and couples building wealth together | Second marriages, business owners, large existing or inherited estates |
*Since the Constitutional Court’s judgment in EB v ER 2024 (2) SA 1 (CC), the divorce court has a discretion under section 7(3) of the Divorce Act to redistribute assets in any without-accrual marriage where one spouse contributed to the other’s estate. The remedy is not automatic.
How your contract is signed and registered
The antenuptial contract must be signed before the marriage and registered at the Deeds Office within three months of signing. Our standard process:
- Application. You complete the intake form — about five minutes. We confirm receipt and your wedding date.
- Drafting. We draft the contract, listing any assets you want excluded from the accrual and capturing your declared commencement values. The draft is emailed within one working day.
- Signing. The contract is signed before a notary public. We do this in person at our Pretoria offices, or by power of attorney where travel is difficult.
- Registration. We lodge the signed contract at the Deeds Office for registration within the three-month statutory window.
Frequently asked questions
Can we exclude specific assets from the accrual?
Yes. The contract can list specific assets that will not be counted when the accrual is calculated — a family business, a particular property, a retirement fund, an investment portfolio. Inheritances and donations received during the marriage are excluded automatically, without the need to list them.
What if we declare zero as our commencement value?
That is common and entirely valid. It means the entire net value of your estate at the end of the marriage will count as accrual. Most couples without significant pre-marriage wealth declare zero or a nominal figure.
Does the EB v ER 2023 case affect a contract with accrual?
Not in any practical way. The Constitutional Court in EB v ER 2024 (2) SA 1 (CC) extended the section 7(3) redistribution remedy to out-of-community-without-accrual marriages. With-accrual contracts already provide for fair sharing of growth, so section 7(3) is generally not invoked.
Can we change to a different regime later?
Yes, by way of a section 21 High Court application under the Matrimonial Property Act. Both spouses must consent and the court must be satisfied that no creditor will be prejudiced. It is significantly slower and more expensive than signing a contract before the wedding.
How long before the wedding should we start?
Four to six weeks is comfortable. We have signed contracts with as little as a day to spare, but starting earlier means less stress in the run-up to the wedding.
Sign your antenuptial contract with accrual
R1,950 all-inclusive. Drafting, notary attendance, and Deeds Office registration. Practising since 1995, ~1,000 contracts registered every year.