Couples who are about to marry have to decide before the marriage whether their property relationship will be In Community of Property or Out of Community of Property. If the marriage is Out of Community of Property, there is a further choice of whether the Accrual System is to be adopted or not.

The choice is not easy. The effects of the various systems have to be discussed in the light of insolvency, death or divorce – all tragic circumstances which are far removed from the thoughts of those about to marry.

In order to understand the alternatives, we shall define the concepts and mention advantages and disadvantages. The choice is ultimately that of the parties, although we can help in making the choice, particularly as special considerations could apply depending on the age, financial circumstances, prospects and personal preferences of the parties.

Under our Law the standard form of marriage (unlike most other Western Countries) is In Community of Property. This form of marriage means the all the present and future assets of the spouses are pooled with each spouse owning an undivided half share. Generally the parties have joint control over this joint community estate (this control in practice may give rise to some confusion, even dispute). The whole estate can be taken by creditors to satisfy the debts of either party. On insolvency the whole estate is lost. On death (if the surviving spouse is not the beneficiary of the estate of the deceased spouse) assets which are not always capable of division (e.g. a motor vehicle) have to be divided or sold. On divorce the same usually occurs.

For those who value their contractual and property independence and who may one day embark on business ventures, the marriage In Community of Property is not ideal.

The partial solution to some of these problems is a marriage Out of Community of Property. We say the solution is "partial" because there is no complete and satisfactory answer to a business disaster, matrimonial strife or untimely death.

A marriage Out of Community Property is brought about by the couples signing a contract before the wedding. The contract is registered in the Deeds Office after which it is given to the couple. The agreement is called an Antenuptial Contract (ANC).

A typical ANC will provide that in respect of property and contracts there is no change in the legal status of the parties. Each has his/her own estate. Neither is liable for the debts of the other.

Whilst the parties are entitled to agree to a wide variety of terms and conditions in an ANC as long as such terms and conditions are not against the Law or Public morals, the most common types of ANC’s concluded are those specifically excluding the Accrual System or those to which the Accrual System applies.

Should the parties specifically exclude the operation of the Accrual System introduced by the Matrimonial Property Act of 1984, the parties would in essence lead completely separate financial lives and neither party would have a claim against the other on the termination of the marriage concluded after 1 November 1984 for a contribution or otherwise save in the event of a further specific agreement between the parties to the contrary (i.e. monies loaned and advanced).

Should the Antenuptial Contract determine that the Accrual System shall be applicable, each spouse would have financial and legal independence and equality and would work for his or her own profit and loss during the existence of the marriage just like where the Accrual System was excluded. However, when the marriage ends (by divorce or death) the "Accruals" to the separate estates of the spouses (but excluding inheritances and donations received during the subsistence of the marriage and any other assets which the parties may agree should be excluded) are divided equally or in agreed proportions. When they sign an ANC, the parties may declare the value of their respective estates to be taken into account in the determination of the accrual when the marriage ends, which value will be increased by the average rise in the consumer price index to ascertain the present day value of such commencement value declared in the Antenuptial Contract.       

At the end of the marriage the values of the two estates are compared and real growths in respect of the estate are calculated. The smaller growth value is then deducted from the larger growth value and the balance divided between the parties in equal shares.

It is permissible to state that the Accrual System, if adopted, is to be applied to specific assets only (e.g. a home) or it could exclude certain assets (e.g. the husband’s business).

The parties about to be married should also check their wills so as to ensure that, where necessary, they are altered to meet their changed circumstances.