Marriage Contract Without Accrual: Total Separation Explained
A marriage contract without the accrual system is the most separation-oriented option South African law allows. It is the right choice for some couples and the wrong choice for many others. This page explains, in everyday terms, exactly what changes when you exclude accrual from your marriage contract — and who that suits.
What “without accrual” means
A standard marriage contract automatically includes the accrual system: separate finances during the marriage, equal sharing of the growth at the end. To get a marriage contract without accrual, the document must specifically exclude the accrual system in terms of section 2 of the Matrimonial Property Act 88 of 1984.
Once excluded, three things follow:
- Two completely separate estates — for the entire duration of the marriage.
- Each spouse responsible for their own debts — for the entire duration of the marriage.
- No automatic sharing or equalisation of growth when the marriage ends.
How it works in everyday language
Day to day, this kind of marriage contract feels almost identical to one with accrual. You each have your own bank accounts, your own credit, your own assets. You can each buy property, sell property, take out loans, run businesses, sign leases — nobody needs anybody’s consent.
The difference reveals itself only when the marriage ends. With accrual, growth gets shared automatically. Without accrual, there is no automatic sharing — whatever is in your name on the day the marriage ends stays in your name.
The kind of couple this fits
Most marriage contracts in South Africa include accrual. The without-accrual version is a deliberate choice for specific situations:
- A second marriage where each spouse already has children. You want your existing wealth to flow to your children, not to be merged or shared on your death.
- A family business that must remain ring-fenced. Even with exclusions inside an accrual contract, some family-trust or shareholding structures are simpler with no accrual at all.
- A couple marrying later in life. Both already have built-up retirement plans, properties, and investments. They prefer to keep finances entirely separate.
- One spouse with substantial inherited wealth or trust beneficiary status. Without accrual removes any future argument over what was and was not shared.
An example
Picture two people in their early 60s. He is a widower with two grown children and a paid-off home. She is divorced, with one daughter at university and a successful consulting business. They want to marry, share a life, and travel — but each wants their own assets to flow to their own children eventually. A marriage contract without accrual is the right starting point. There is no joint estate, no automatic accrual to calculate. Their estates remain separate, all the way through the marriage.
The trade-off — and an important 2023 case-law update
For many years, a marriage contract without accrual was treated as the airtight separation option: separate during, separate at the end. Following the Constitutional Court’s judgment in EB v ER 2024 (2) SA 1 (CC), this is no longer entirely accurate.
The Constitutional Court extended section 7(3) of the Divorce Act to apply to all out-of-community-without-accrual marriages, regardless of when the marriage was concluded. (Until 2023, the redistribution remedy under section 7(3) was limited to marriages concluded before 1 November 1984.) The divorce court now has a discretion to order a just-and-equitable redistribution of assets where one spouse contributed (directly or indirectly) to the maintenance or increase of the other spouse’s estate during the marriage.
The remedy is discretionary, not automatic. The spouse claiming it must establish a basis for the court to exercise the discretion. But it is no longer ruled out by the date of the marriage.
What this means in practice. A marriage contract without accrual is still the most separation-oriented option available, and still the right choice for the situations listed above. But couples who want their assets genuinely ring-fenced should combine the without-accrual contract with separate-account discipline during the marriage and, where appropriate, trust or company structures for high-value or family assets. We can advise on this when we draft your contract.
Compare your three options before getting married
| Question | No marriage contract (in community) | Marriage contract with accrual | Marriage contract without accrual |
|---|---|---|---|
| Do we need to sign anything? | No | Yes | Yes |
| Who owns what? | Everything in one pool, shared 50/50 | Each spouse owns their own estate | Each spouse owns their own estate |
| Who pays the debts? | Both of you, for either spouse’s debt | Each spouse for their own debt only | Each spouse for their own debt only |
| Do I need my spouse’s signature for big decisions? | Yes | No | No |
| What happens to inheritances? | Drop into the joint estate (unless the will says otherwise) | Stay separate by law | Stay separate by law |
| What gets shared at divorce or death? | The whole joint estate, 50/50 | Only the growth during the marriage, 50/50 | No automatic sharing — but court has a discretion since EB v ER 2024 |
| Best fit for | Couples who really do want full sharing | Most first-time marriages | Second marriages, family-business owners, large existing estates |
Detailed legal commentary on this regime → antenuptialcontracts.co.za
How your marriage contract is signed — without coming in
Most of our couples never visit our office. We have built the signing process around power of attorney as the default. You do not need to come in.
- Apply through the marriage contract intake form and select the without-accrual option.
- We draft the contract, expressly excluding the accrual system, and email it for your review.
- We send each of you a power of attorney. Sign and return scans; originals follow by post or courier.
- Our office signs the contract before the notary on your behalf. You do not need to attend.
- We lodge the signed contract at the Deeds Office for registration within the three-month statutory window.
Fee: R1,950 all-inclusive — drafting, power of attorney, notary, and Deeds Office registration. In-person signing in Pretoria is available if you would prefer.
Frequently asked questions
Can the court redistribute assets despite a marriage contract without accrual?
Since the Constitutional Court’s judgment in EB v ER 2024 (2) SA 1 (CC), the divorce court has a discretion under section 7(3) of the Divorce Act to order a just-and-equitable redistribution of assets in any out-of-community-without-accrual marriage — not only those concluded before 1 November 1984. The remedy is not automatic; the spouse claiming it must show that they contributed (directly or indirectly) to the other spouse’s estate. But it is no longer ruled out by the date of the marriage.
If we buy a house together, do we both own it?
Yes — but only because you registered it in joint names. The deed reflects the ownership; the marriage contract sets the default that everything else stays separate.
Are inheritances and gifts dealt with differently?
The accrual question does not arise without accrual — everything is separate already. Inheritances simply flow to the inheriting spouse and stay there.
Can we add accrual back in later?
Yes, by way of a section 21 High Court application. Both spouses must consent and creditors must not be prejudiced. It is more involved than signing a contract before the wedding.
Is this the same as “complete separation of property”?
Yes. The two phrases are used interchangeably. The legal label is “out of community of property without accrual”. With one important caveat after EB v ER: it is no longer absolute — the divorce court has a discretion to redistribute assets where one spouse contributed to the other’s estate.
Sign your marriage contract without accrual
R1,950 all-inclusive. Drafting, power of attorney, notary, and Deeds Office registration. Nationwide service from Louwrens Koen Attorneys.