Understanding marriage contracts: a guide to matrimonial property regimes

One of the most important decisions you’ll make before getting married is choosing a matrimonial property regime. Your choice of a marriage contract can have far-reaching financial consequences, so it’s essential to understand the pros and cons of each system before tying the knot.

(i) In community of property

In community of property is the default marital regime where no antenuptial contract (ANC) has been signed. In the absence of an ANC, couples are automatically married in community of property – often without realising the long-term implications. One perceived advantage of this regime is that there are no upfront legal costs required to draft an antenuptial contract, although the reality is that these costs are nominal. Under this system, all assets and liabilities are merged into one joint estate, subject to a few exceptions.

As both parties are effectively working together for the benefit of the joint estate, this form of marital regime can encourage togetherness and oneness of purpose, although the fact remains that community of property remains a flawed system that has numerous disadvantages, with the management of debt being the most notable one. In a community of property marriage, both spouses are jointly liable for all debts, including debts incurred before the marriage. In a joint estate, one spouse can bind the joint estate through their actions, which can have devastating effects, especially in the case of insolvency. If one spouse is unable to pay their debts, their creditors have a claim to the joint estate, which can lead to both spouses being declared insolvent. 

Further, managing the joint estate also comes with administrative challenges, as spousal consent is required for transactions such as selling property or withdrawing from a joint account. Additionally, shared credit records mean that poor financial behaviour by one spouse can affect the other’s creditworthiness.

(ii) Out of community of property with the accrual system

When entering into such a marital regime, couples are required to sign an antenuptial contract that excludes community of property and profit and loss but includes the accrual system. The nature of this marital regime is that each spouse retains separate ownership of their assets during the marriage and, when the marriage dissolves either due to death or divorce, they will share equally in the growth of their respective estates.

This marriage regime is widely considered to be more equitable as it allows both parties to share in the value accumulated during the subsistence of the marriage, offering protection to the economically weaker spouse. As each spouse maintains their own estate, each spouse’s estate remains protected from the creditors of the other. Each spouse retains full contractual capacity, meaning that no spousal consent is required in any circumstances. Further, each spouse remains responsible for their debt and retains their separate credit score.

On the downside, calculating the accrual at the end of the marriage can be complex, and keeping accurate records of the growth in each estate can be difficult. A notable risk is that reckless financial behaviour by one spouse, such as excessive debt, can negatively affect the accrual. However, the other spouse may apply to the court for immediate division in such cases. On death, the surviving spouse has a legal claim for their share of the accrual, so estate planning is essential.

(iii) Out of community of property, excluding the accrual system

To be married without the accrual system, couples must expressly exclude it in their antenuptial contract. In terms of this marriage regime, each spouse maintains complete separation of their estates for the duration of the marriage and on dissolution, resulting in maximum financial independence for each partner. Each spouse retains full control of their estate and is protected from the financial mismanagement or insolvency of the other. Creditors have no claim against the other spouse’s estate, and each person maintains their own credit history and debt responsibility. Further, this marital regime also allows for full freedom of testation, as there is no joint estate.

However, with no sharing of assets, this system can make it difficult for couples to work towards joint financial goals, and the absence of financial interdependence may impact relationship dynamics and long-term planning. Notably, this regime can be particularly disadvantageous for a spouse who stays at home or earns less, as they receive no share in the assets accumulated by their partner during the marriage. If the marriage ends, the financially dependent spouse may leave with little or no claim to the other’s estate.

Choosing the right marital property regime is not just a legal formality—it’s a cornerstone of your future financial well-being. Whether you value shared growth, full independence, or balanced protection, understanding each regime’s strengths and limitations can help you make the best decision for your marriage and financial future. As such, always consult a legal professional before making this important choice.

* Odendaal is an associate financial planner at Crue Invest.

PERSONAL FINANCE