October 7 2025 11:16
SOUTH AFRICA
This is a guest article by Savannah Solomons of Solomons Attorneys. She has worked with a range of companies including start-ups, large groups and multinationals. In this piece she details how matrimonial regimes affect property right in South Africa.
Understanding the effect of a matrimonial property regime on an individual’s immovable property rights is of vital importance when deciding what matrimonial property regime to apply when getting married.
Whether the property is a primary residence, a holiday home, or investment immovable property such as land, commercial premises, or industrial buildings, the applicable marital property regime determines ownership, control, and rights upon dissolution of the marriage.
A solid understanding creates a solid foundation for a transparent marriage and is essential to protect one’s financial interests, planning for the future, and avoid costly disputes.
Marriage in Community of Property
If spouses do not sign an antenuptial contract before marriage when their marriage is registered the regime will default to marriage in community of property, aspects of marriage in community of property are as follows:
- Joint Estate: all assets and liabilities (acquired before and during the marriage), including immovable property, fall into one joint estate;
- Ownership of Property: both spouses are co-owners of all property, regardless of who paid for it or whose name appears on the title deed;
- Management of Property: transactions in relation to property, such as selling or mortgaging a family home, require the written consent of both spouses;
- Impact on Immovable Property:
- residential property cannot be sold or bonded by one spouse alone;
- investment properties, such as commercial or industrial buildings, are also jointly owned and require spousal consent to dispose of or encumber.
- Risk: debts are shared equally. If one spouse is declared insolvent, immovable property forming part of the joint estate is at risk.
Example:
Sipho and Lerato marry in community of property. Sipho buys a commercial property registered only in his name. Later, he wants to sell it. Even though Lerato’s name is not on the title deed, her written consent is required because the property forms part of the joint estate. If Sipho’s business fails and creditors pursue him, the commercial property could be sold to settle debts even though Lerato had no involvement in the business.
Marriage Out of Community of Property Without Accrual
Spouses are able to conclude an antenuptial contract to exclude community of property, in which event each spouse will maintain a completely separate estate. Aspects of marriage out of community of property without accrual are as follows:
- Ownership of Property: each spouse retains exclusive ownership of immovable property acquired before and during the marriage. Title deeds are registered in the individual’s name, and the other spouse has no legal claim to such property;
- Control: each spouse independently buys, sells, mortgages, or leases immovable property without requiring the other’s consent;
- Impact on Immovable Property:
- A spouse can accumulate land, commercial, or industrial investments without any sharing obligation;
- On divorce, each spouse walks away with their own property, subject only to division of jointly acquired property if registered in both names.
- Risk: This regime offers protection against the other spouse’s debts and insolvency but provides no sharing of growth or wealth, which can leave a financially weaker spouse vulnerable.
Example:
Nomsa owns a piece of industrial land before her marriage to Kabelo. They marry out of community without accrual. Nomsa later develops factories on the land, increasing its value significantly. On divorce, Kabelo has no claim to the land or its increased value, even though it grew substantially during the marriage. He leaves with only the assets registered in his own name.
Marriage Out of Community of Property with Accrual
Accrual is a system applied to a matrimonial property regime to balance independence of estates with fairness in respect of growth of each estate. Each spouse will retain their assets and separate estates while the financial growth of the estate is shared to place each spouse in an equal position upon divorce. Aspects of marriage out of community of property with accrual are as follows:
- Ownership During Marriage: immovable property is owned by the spouse in whose name it is registered. Consent of the other spouse is not required for transactions or decisions with the property during the marriage;
- Accrual Calculation: at divorce or death, the increase in value of each spouse’s estate is compared. The spouse with the smaller growth has a claim for half of the difference in accrual from the other;
- Impact on Immovable Property:
- if one spouse invests in land, commercial, or industrial property and its value appreciates, that growth may form part of the accrual calculation;
- this ensures that both parties benefit from the accumulation of wealth, even if assets were acquired in one spouse’s name.
- Balance: the system allows business owners or investors to manage their property independently, while still ensuring equitable distribution of wealth.
Example:
Thandi marries Johan out of community of property with accrual. Johan buys an office block during the marriage, which doubles in value over ten years. Thandi, a teacher, has limited growth in her estate. On divorce, Thandi does not claim ownership of the office block, but she is entitled to share in Johan’s estate growth. Johan must pay her half of the difference in accrual, ensuring she benefits from the wealth created during the marriage. If Johan does not have sufficient funds to pay her half he will be forced to sell the property to pay her the accrual claim she has against his estate.
Key Considerations for Immovable Property
Ownership of immovable property in South Africa is determined by the details of the title deed. In community of property will be registered in both spouses names while out of community of property or out with accrual will be registered in the acquiring spouses name.
In community of property limits the freedom of either spouse to control the immovable property as chosen because spousal consent is required in respect of every decision that is made in relation to the property.
Where spouses are married in community of property their debts become part of the joint estate. Where one spouse has a court order against them the Sheriff is able to attach both parties property in order to sell the property and repay the creditor. Where spouses are married out of community of property debts are not shared and separate immovable property will be protected if it is owned by the spouse without debt.
Finally, where the accrual system is applied spouses should apply careful planning to their estates as property ownership and growth will directly affect accrual claims.
Conclusion
The chosen matrimonial property regime has profound implications for ownership, control, and division of immovable property.
Whether dealing with housing, land, or investment property, couples should carefully consider their regime before marriage and seek professional legal advice. Decisions can impact not only the expense of divorce but financial security in the marital home.
Marriage in community of property promotes shared ownership but exposes both spouses to shared liabilities and potential for financial instability. Marriage out of community without accrual preserves independence but may disadvantage one spouse financially. Marriage out of community of property with accrual offers a balance between independence and fairness, particularly for long-term marriages where one spouse invests heavily in immovable property. It also ensures that spouses have a means of promoting financial stability where one spouse has substantial debt or potential for substantial debt.
Ultimately, understanding these regimes empowers individuals to make informed decisions about their property rights, investments, and future financial security.
Parties should always consult with a legal practitioner to ensure that they make an informed decision regarding a matrimonial property regime before a marriage is concluded.
If you ever require assistance with a property related issue, contact Savannah Solomons of Solomons Attorneys on:
Cell: 079 503 0812
Email: savannah@solomonsattorneys.co.za
