Marrying out of Community of Property / Ante Nuptial Contracts
In our law, a marriage that is not entered into out of community of property in terms of an ante nuptial contract by which community of property and community of loss are excluded, is deemed to be entered into in community of property. This means that the spouses have one, joint estate as opposed to separate estates and as such, each spouse is jointly and severally liable for the debts of their estate.
Every marriage out of community of property in terms of an ante nuptial contract by which community of property and community of profit and loss are excluded is subject to the accrual system. The ante nuptial contract can however expressly exclude the accrual system. The accrual of the estate is the amount by which the estate of a spouse estate has increased since the date or commencement of the marriage. In other words, the net value of the spouse’s estate at the dissolution of the marriage less the net value of the spouse’s estate at the commencement of the marriage.
If the accrual system is not excluded, then should the marriage dissolve, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses.