In many African cultures, specific assets—such as ancestral land, family livestock, or businesses built by previous generations—carry significance far beyond their monetary value.
The Danger of the Accrual System
If you marry Out of Community of Property with the Accrual system, your estates remain separate during the marriage. However, upon divorce or death, the growth (accrual) of both estates is calculated, and the partner whose estate grew less has a claim to 50% of the difference.
If heritage assets, such as a family farm or a herd of cattle, appreciate in value over the course of the marriage, that growth is factored into the accrual. This could potentially force the sale or division of family assets to satisfy an accrual claim during a divorce.
The Exclusion Clause Solution
South African law allows couples to specifically exclude certain assets from the accrual calculation. By listing specific heritage items (and their future replacements or derivatives) in the Antenuptial Contract prior to the customary marriage, those assets can be specifically excluded from the accrual calculation, subject to the terms of the ANC and applicable law.
Drafting with Precision
It is not enough to vaguely list "family property." A Notary Public must draft specific, legally tight exclusion clauses detailing the exact nature of the assets, whether they be shares in a family trust, specific tracts of land, or livestock.
At B4.iDO, our Notaries can help structure contracts that take customary values and specific asset-protection objectives into account within the framework of South African matrimonial property law.