How Marital Contract Affects Divorce and Death

Marriage is as much a legal arrangement as it is an emotional commitment, and while few people enjoy thinking about what might happen if a relationship comes to an end, either through divorce or the death of a spouse, it is one of the most important aspects of financial and personal planning.

In South African law, there are three primary marital systems that apply: marriage in community of property, marriage out of community of property without the accrual system, and marriage out of community of property with the accrual system. Each of these systems has specific rules that affect what belongs to whom and how finances are separated when a marriage dissolves.

A marriage in community of property means that, from the day a couple says their vows, everything they own and owe becomes part of a single joint estate. This includes not only their assets like homes, cars, and investments but also their debts and liabilities. When a couple divorces under this system, the joint estate is typically divided equally between them, regardless of who earned more or brought more into the marriage. This division includes both assets and debts, which means one partner could find themselves responsible for a portion of the other’s financial obligations. In the case of death, the surviving spouse is entitled to half of the joint estate, with the other half distributed according to the deceased’s will or the laws of intestate succession if no valid will exists. This system, while simple in theory, can become complex if significant debts exist or if assets like businesses and inherited property are involved.

A marriage out of community of property without the accrual system keeps each spouse’s assets and liabilities entirely separate, both during the marriage and at its end. Whatever a person owned before the marriage, and whatever they acquire during it, remains solely theirs. If the couple divorces, there is no division of property, and each party walks away with what legally belongs to them. The same applies when one spouse dies, their estate is dealt with independently, and the surviving spouse has no automatic claim to their partner’s assets unless provided for in a will. While this system offers the greatest financial independence and protection, it can lead to difficulties if one spouse sacrifices career opportunities or earning potential for the benefit of the marriage and is left with little or no financial security after its end. The third and increasingly popular option is marriage out of community of property with the accrual system. This system strikes a balance between financial independence and fairness, especially in long-term partnerships where both spouses contribute to the household in different ways. Under this arrangement, each partner maintains a separate estate during the marriage, but upon divorce or death, the growth (or accrual) of each estate is compared. The spouse whose estate increased less has a claim against the other for half of the difference in value, unless assets have been specifically excluded in the antenuptial contract. This system acknowledges that not all contributions to a marriage are financial and ensures that both parties share in the wealth built together, even if one spouse stayed home to raise children or supported the other’s career ambitions.

When a divorce occurs under the accrual system, the accrual values are calculated by determining the difference between each spouse’s net worth at the start of the marriage and at its end. The one with the smaller accrual can claim half of the difference between the two. In the event of a spouse’s death, the surviving spouse has the same right to claim their accrual share before the deceased’s estate is finalised. This system is often seen as the fairest option because it recognises both financial and non-financial contributions made during a marriage while still allowing for a degree of independence during the relationship. It is also important to note that inheritances and gifts received by one spouse, even during the marriage, are typically excluded from the accrual unless otherwise specified in the antenuptial contract or if the donor or benefactor intended otherwise. This provides protection for assets meant to remain within a particular family or passed down through generations. While few people relish the legal side of marriage, understanding how marital systems work is essential, not just when the relationship begins, but especially when it ends. The choice a couple makes at the outset shapes their financial futures in ways that often only become truly visible during life’s more difficult moments. That is why it is always advisable to get good legal and financial advice before entering into a marital contract and to revisit those arrangements if circumstances change over time.

Whether a marriage ends in divorce or through death, the process of untangling shared lives is never easy. It involves both emotional and practical decisions, made harder when the legal framework is not clear or has not been discussed. By understanding the differences between marital systems and their consequences, couples can better protect their personal and financial interests and handle life’s unexpected turns with greater confidence and peace of mind. It is one of those subjects best dealt with not when emotions are running high, but early on, when there is time for thoughtful planning and honest conversations about what each person values and hopes for in the future.