Legislation

The Matrimonial Property Act, 1984, covers matrimonial property regimes and the financial consequences of marriage as covered in this this article.

Two other key legislation relating to marriage, albeit not covered in this article, include The Marriage Act 25 of 1961, which governs the registration and solemnisation of marriages in South Africa, and The Divorce Amendment Act, 2024, which covers the dissolution of a marriage (unlike annulment, which declares the marriage null and void).

The new Marriage Bill, which has been in development since 2022, will replace the Marriage Act, the Civil Union Act, and the Recognition of Customary Marriages Act.

Different Types of Marriage Contracts in South Africa

Marriage is one of life’s biggest commitments — not only emotionally, but financially. It's not just about love; it’s about how you will build, protect, and share your future together. And while most couples focus on the wedding day itself, there’s one vital aspect of marriage that often goes overlooked until it's too late: the marriage contract.

In South Africa, the type of marriage contract you choose is more than just a legal formality. It can affect everything from how you manage your finances together to how assets are divided in the event of divorce. The choice you make will shape your financial future, and that’s why it's essential to understand all your options before you say "I do."

In Community of Property (The Default Option)

If you don’t sign a marriage contract before your wedding day, South African law automatically applies the in community of property (COP) regime. This is the default marital regime under the Matrimonial Property Act, and while it's simple in principle, it has lasting implications.

Key Features:

• One joint estate – Everything you own, as well as your debts, become part of a shared pool — regardless of who acquired it or when. This includes assets owned before marriage (unless they were specifically excluded by law, such as inherited assets with conditions).
• Equal management and responsibility – Both spouses are equally entitled to and responsible for the estate. However, some transactions (such as selling immovable property) require both parties’ written consent.
• Joint debt liability – If one spouse is sued or declared insolvent, creditors can claim from the shared estate. This can jeopardise the other spouse’s assets even if they had no role in incurring the debt.

Many couples choose COP because it’s automatic and free — no contract required. However, it can expose you to financial risk, especially if one partner is self-employed or works in a high-liability profession. If one partner has significant debt, business risks, or poor financial habits, the other may suffer legal and financial consequences they never anticipated.

Out of Community of Property (With an Antenuptial Contract)

Marriages out of community of property allow each spouse to keep their assets and debts separate, offering a greater level of protection and independence. This marital regime requires an antenuptial contract (ANC) signed before the marriage and registered with the Deeds Office.

There are two ways to structure an ANC: with accrual or without accrual.

Out of Community of Property With Accrual

The accrual system strikes a middle ground. It allows couples to maintain financial independence during the marriage, while agreeing to share in each other’s financial growth if the marriage ends through divorce or death.

Key Features:

• Assets acquired before marriage stay separate (unless included in the contract), while assets acquired during the marriage are subject to sharing on dissolution.
• Accrual = growth – The estate that has grown more during the marriage must share a portion of the growth with the other spouse. This encourages fairness and reflects shared contribution to the household, even if only one spouse earned an income.
• Exclusions are allowed – Parties can exclude specific assets (such as family heirlooms or business interests) from the accrual calculation, provided they are listed in the contract.

Why Couples Choose It:

This option is especially attractive when one spouse plans to stay home, raise children, or support the household in ways that may not directly increase their own net worth. It ensures both parties share in the wealth generated during the marriage, even if only one earned it. It's also ideal for protecting pre-marital assets while building a shared future.

Out of Community of Property Without Accrual

This is the most financially independent of all marital regimes. Each spouse maintains a completely separate estate — from beginning to end.

Key Features:

• Total financial separation – No sharing of past, present, or future assets or liabilities. Each person is legally and financially responsible only for what they own or owe.
• No claim to the other’s estate – On divorce, there is no division of assets unless a specific contractual agreement or court order says otherwise.

When to Consider It:

This regime is preferred by high-net-worth individuals, entrepreneurs, or anyone with substantial pre-marital assets or business exposure. It’s also used in second marriages, where each party wants to protect their estate for children from previous relationships.

That said, it offers no financial safety net. If one spouse sacrifices career opportunities for the benefit of the marriage, they don’t benefit from the other’s financial gains unless other agreements are in place.

Changing Your Matrimonial Property Regime After Marriage

Many couples don't fully understand the legal consequences of their marital regime until years later — often when starting a business, buying a home, or facing financial hardship. Fortunately, South African law does allow you to change your marital regime after marriage, but it’s not a simple process.

The Legal Process:

• A couple must jointly apply to the High Court for permission to change their regime under Section 21(1) of the Matrimonial Property Act.
• The application must be motivated by sound reasons, and prove that the change won't prejudice creditors or other interested parties.

Legal Requirements Include:

• Notification to the Registrar of Deeds
• Publication of the intention to change in the Government Gazette and two local newspapers
• Written notice to all known creditors
• A statement of assets and liabilities
• A draft of the new antenuptial contract, annexed to the court application

Costs and Timing:

This process is expensive, administrative, and can take months to finalise. It also opens the couple’s financial affairs to public scrutiny, which may deter some people. In fact, some couples have opted for divorce and remarriage under a different regime — though this can create even more complications, including tax and succession issues.

Changing your marital property system is possible — but far better to make the right decision from the start.

Why You Need Legal Advice Before Tying the Knot

Your wedding may be a celebration of love, but your marriage is also a legal and financial arrangement — one that comes with obligations, rights, and long-term consequences. South African marital law is complex, and it’s not something you can safely figure out by Googling a few terms or borrowing advice from well-meaning friends.

The truth is, many couples only learn about the implications of their marital regime when it’s too late — during a divorce, a death, or a dispute over assets. By then, the legal framework is already in place, and in most cases, extremely difficult and expensive to change.

Situations where the right legal advice matters:

•     You're buying property together and want to clarify how ownership and bond repayments will work
•     One of you is starting a business or entering a profession that comes with legal risk or debt exposure
•     You’ve been married before and want to protect your estate for children from a previous relationship
•     You’re financially unequal, and want to ensure fairness while protecting each partner’s long-term interests
•     You’re planning to pause your career to raise children or support your partner’s ambitions

Understanding your options isn’t about mistrust — it’s about clarity, consent, and ensuring that you’re both protected, no matter what the future holds.

A qualified legal professional will help you understand:

•     How your joint and separate estates will be managed
•     What financial rights and obligations you’ll each have
•     How debt, divorce, or death could impact your financial stability
•     What to include or exclude in your antenuptial contract based on your circumstances

The decisions you make now will shape your financial foundation for years to come. Legal advice ensures those decisions are intentional — not accidental.

VDM Attorneys – Marriage Law Attorneys

At VDM Attorneys, we don’t just draft documents — we guide couples through the real-life implications of each marital regime. With over 35 years of experience in family law, conveyancing, and notarial practice, we’ve helped hundreds of couples make informed decisions before and after they marry.

Your marriage contract shapes your legal future. Contact us so we can help you get it right from the start.