Every person’s marriage is subject to a Matrimonial Property Regime (“MPR”). MPR’s dictate how assets are managed during the marriage and what happens to them upon death or divorce. These regimes have significant implications for:

• The drafting and execution of your Will,
• How your estate is distributed, and
• The rights of your surviving spouse

There are three main MPR’s that exist in South Africa

1. Marriage IN community of property
   
   This is the default marital regime in South Africa if no antenuptial contract (ANC) is signed before marriage. In this regime, all assets and liabilities acquired before and during the marriage are jointly owned by both spouses.
   
   So, because half of the joint estate belongs to your spouse by law, when drafting your Will, you can technically only bequeath your half of the estate.

2. Marriage OUT of community of property
   
   In this regime, each spouse retains full ownership of the assets and liabilities they bring into the marriage and acquire during the marriage. This is achieved by signing an ANC that excludes the accrual system.
   
   This regime allows you to have full control over the distribution of your assets in your Will. However, it is important to keep in mind that although your surviving spouse does not have an automatic claim to your estate, should you wish to exclude your spouse from your Will they can still bring a maintenance claim under the Maintenance of Surviving Spouses Act.

3. Marriage OUT of community of property with the ACCRUAL system
   
   This regime combines elements of independence and shared wealth. Each spouse retains ownership of their pre-marital assets, but the growth (accrual) of their estates during the marriage is shared equally upon divorce or death.
   
   So, this system ensures that the surviving spouse can have a claim to a portion of the deceased’s estate, even if the Will does not provide for them. The accrual claim takes precedence over the provisions in your Will.
   
   It is important to keep an up-to-date accrual calculation and account for it in your estate plan.

Under South African law there is also the MPR and laws that arise from the Recognition of Customary Marriages Act

The default matrimonial property regime for monogamous customary marriages is also IN community of property, unless the parties enter into an ANC.

Note, however, that according to Section 7(6) of this Act, a husband in a customary marriage who wishes to enter into a further customary marriage with another woman must make an application to the court to approve a written contract which will regulate the future MPR of his further marriage (i.e. whether the subsequent customary marriage will be in or out of community of property).

It is not uncommon in South Africa to find a husband in a customary marriage entering into a second or further customary marriage without following proper legal procedures as stipulated in Section 7(6).

This issue was settled in the case of Ngwenyama v Mayelane - If the husband wishing to conclude a further customary marriage fails to follow the requirements of Section 7(6), the subsequent customary marriage will be valid, but it will automatically be OUT of community of property.

In conclusion

Aligning your Will with the legal requirements of your marital regime reduces the risk of disputes among heirs and beneficiaries. Whether you are married in community of property, out of community of property without accrual, or with accrual, understanding the legal implications is essential for ensuring your estate plan aligns with your wishes and protects your loved ones.

Should you wish to learn more on this topic, please do not hesitate to contact Appleton Fiduciary Services on 0800 50 60 70 or clientcare@appleton.com