The Matrimonial Property Act of 1984 is the legislation that fundamentally reshaped the way South African law treats property ownership and division within marriage. It governs the default matrimonial property regimes available to couples, sets out how spouses can alter these regimes through an antenuptial contract, and establishes the legal consequences when a marriage ends—whether by divorce or death.

Before the Act came into force on 1 November 1984, the default position for most marriages was in community of property, where both spouses’ assets and debts were combined into one joint estate. This system was intended to promote equality, but it also exposed spouses to each other’s financial liabilities, sometimes with severe consequences. The 1984 Act introduced an alternative: out of community of property with accrual, which allowed for greater financial independence while still recognising the contributions of a non-earning or lower-earning spouse.

The Act now regulates three primary systems:

• Marriage in community of property
• Marriage out of community of property with accrual
• Marriage out of community of property without accrual

It also lays down the requirements for a valid antenuptial agreement, which must be executed before marriage and registered with the Deeds Office. These contracts are legally binding documents that can shape a couple’s financial relationship for decades, and their drafting has significant consequences in divorce or estate administration.

Marriage In Community Of Property – The Default Regime

If a couple does not sign an antenuptial contract before marriage, they are automatically married in community of property. Under this regime, the spouses share a single joint estate into which all assets and liabilities are merged. This includes:

• Assets owned before the marriage.
• Assets acquired during the marriage.
• Debts incurred before and during the marriage.

The intended advantage is fairness—both spouses have equal rights of ownership and benefit from any growth in the estate. However, this equality extends to liability. If one spouse racks up personal debt or faces a legal claim, creditors can pursue the joint estate, affecting both parties’ assets.

In practice, this can create significant risk, especially where one spouse is a business owner, has high exposure to personal guarantees, or engages in risky financial activities. The joint estate can be diminished or even wiped out by the actions of one spouse, leaving the other with no independent protection. While the system ensures a simple equal split at dissolution, it can be financially precarious for the more prudent partner.

Marriage Out Of Community Of Property With Accrual

Many couples choose out of community of property with accrual to balance independence with fairness. This arrangement is only possible through an antenuptial contract with accrual, concluded before the marriage.

Here, each spouse retains ownership of the assets they had before marriage. During the marriage, they can acquire and manage property independently. However, on dissolution—whether by divorce or death—there is a calculation of the accrual, or growth, of each estate. The spouse whose estate grew less is entitled to half the difference in growth.

For example, if one spouse gave up a career to raise children while the other’s business flourished, the accrual system ensures they share in the wealth created during the marriage. Specific exclusions—such as inheritances or donations—can be written into the contract to protect certain assets from being included in the accrual.

This regime is seen as a fairer option for modern couples, especially in marriages where contributions are not solely financial but still contribute to the family’s overall prosperity.

Marriage Out Of Community Of Property Without Accrual

The antenuptial contract without accrual offers complete financial independence. Each spouse retains full ownership of their assets and is solely responsible for their debts, both before and during the marriage. There is no sharing of growth in assets at the end of the marriage.

While this can work well in second marriages or where each spouse has significant personal wealth, it offers no automatic compensation for a spouse who made substantial non-financial contributions, such as raising children or supporting a partner’s career. In these cases, the law historically provided almost no remedy—an inequality that has become a focus of constitutional scrutiny and reform.

The Constitutional Court Ruling And The 2025 Legislative Response

On 10 October 2023, the Constitutional Court declared that section 7(3) of the Divorce Act unfairly discriminated against certain spouses—specifically, those who married out of community of property without accrual after 1 November 1984, and whose marriages ended in death rather than divorce.

The Court noted that this exclusion had a disproportionate impact on women who had contributed to the marriage in non-financial ways. By being denied the right to seek a redistribution of assets, they could be left with little to nothing, despite years of unpaid work and sacrifice.

The Court’s remedy was twofold:

• Immediate reading-in: Until Parliament changes the law, courts can now grant redistribution orders in both divorce and death cases, regardless of when the ANC was signed.
• Deadline for legislative reform: Parliament was given until 10 October 2025 to make these changes permanent.

This ruling has already changed how courts handle certain ANC-without-accrual cases, but its full impact will be felt once the new legislation is in force.

The General (Family) Laws Amendment Bill, 2025

In June 2025, government published the explanatory summary of the General (Family) Laws Amendment Bill. Although the full text is still to be tabled, the Bill’s key objectives are clear:

• Amend the Matrimonial Property Act to allow redistribution in all ANC-without-accrual marriages, irrespective of date.
• Extend redistribution rights to marriages dissolved by death, aligning divorce and estate outcomes.
• Enhance the Family Advocate’s ability to safeguard the interests of vulnerable spouses and children.

Once enacted, these amendments will close a long-standing gap in matrimonial property law and will likely lead to an increase in redistribution claims in both divorce proceedings and deceased estate matters.

The South African Law Reform Commission’s Broader Proposals

Beyond the immediate legislative changes, the South African Law Reform Commission (SALRC) is conducting a comprehensive review of matrimonial property law under Project 100E. Their proposals, still under discussion, include:

1. Changing the default regime to out of community of property with accrual, better reflecting modern views on fairness and autonomy.
2. Improving antenuptial contract rules, including mandatory independent advice and full asset disclosure to prevent imbalances in bargaining power.
3. Granting courts broader discretion to order asset redistribution at the end of any marriage, based on statutory fairness factors.
4. Simplifying mid-marriage changes to property regimes, which are currently procedurally and financially burdensome.
5. Reforming customary and religious marriage laws, particularly regarding recognition of family property, polygynous unions, and religious marriage contracts like the nikah.
6. Addressing asset protection loopholes in trusts and retirement products, and formally recognising career assets for redistribution purposes.
7. Modernising cross-border marriage rules to avoid outdated domicile-based conflicts of law.

If adopted, these proposals would represent the most far-reaching reform of matrimonial property law since the Act’s inception.

Why These Changes Matter

The combined effect of the Constitutional Court ruling, imminent legislative amendments, and possible SALRC reforms is profound. Couples and practitioners must prepare for:

• Greater judicial discretion in asset division, requiring thorough evidence and strategic case preparation.
• Increased importance of antenuptial drafting, as courts may scrutinise contracts more closely for fairness.
• More complex divorce and estate administration, with redistribution claims possible in far more cases than before.
• Potential shifts in default marriage regimes, changing the advice lawyers must give to clients entering marriage.

Practical Advice For Couples And Practitioners

• Before marriage: Consider your personal and financial circumstances carefully before choosing a property regime. An antenuptial agreement South Africa should reflect both parties’ needs and protect against foreseeable risks.
• During marriage: Maintain financial transparency and document contributions to the marriage, particularly if one partner is taking on non-financial roles.
• Approaching divorce or death: Obtain early legal advice to assess claims under the redistribution provisions, especially if your marriage is ANC without accrual.
• For legal practitioners: Proactively review existing ANCs for clients and alert them to the potential impact of the new law.

VDM Attorneys – Expert Guidance On Marriage Property Law

As South Africa’s matrimonial property law undergoes its most significant transformation in decades, couples and practitioners alike need clarity, foresight, and skilled legal support. At VDM Attorneys, we offer in-depth expertise in the Matrimonial Property Act of 1984, advise on marriage in community of property, out of community of property with accrual, and antenuptial contracts, and guide clients through divorce and estate processes in light of evolving legislation.