Marriages with Accrual (Plus A Step-by-Step Guide on how to calculate the Accrual).

What is a Marriage out of Community of Property with Accrual?

A Marriage out of Community of Property with the Accrual System’s inclusion is a type of marital regime where each spouse has their own separate estate.

When does the accrual sharing take place?

The sharing of the accrual takes place at the dissolution of the Marriage, i.e. at the time of divorce or death of a spouse, both spouses (or the estate) share in their respective estates’ growth.

What is the purpose of a Marriage out of a Community of Property with the inclusion of the accrual?

The accrual system was created based on the idea that at the dissolution of the divorce, both spouses must share in the growth that their estates have shown, even though each spouse has their own estate while married.

All Marriages that are concluded out of the community of property are deemed to be with the accrual system (from the 1st November 1984), except if the accrual system is specifically excluded.

Is it possible to change your Marital Regime?

It is possible to change your marital regime in terms of Section 21 of Act 88 of 1984 ((The Matrimonial Property Act). I.e., if you got married in community of property, you can bring a High Court Application to change your marital regime.

What are the Advantages of a Marriage out of Community of Property with the Accrual?

•  Spouses have complete control over their respective estates, and they are allowed to control their own estates, provided that they do not unduly prejudice their spouse’s right to share in the accrual.

•  Each spouse is responsible for their own debt. If a spouse is declared insolvent, it only affects that specific spouse’s estate. I.e. protection from the creditors of the other spouse.

•  The spouse with the smaller estate will equally share in the accrual.

•  A spouse with significant assets can exclude those assets in an antenuptial agreement.

•  This marital system is a fair and equitable marital system.

•  Both spouses share in the growth of each other’s estate.

•  Each spouse can freely enter into contracts with the other.

What are the Disadvantages of a Marriage out of Community of Property with the Accrual?

•  A spouse may be limited to control their estate if it is likely to prejudice their spouse’s right to share in the accrual.

•  If the property is not excluded when the Antenuptial Agreement is signed, this property will be considered when the accrual is calculated.

• The spouses must enter into an Antenuptial Agreement (ANC) if they want to be married with the accrual system.

• The accrual calculation can be complex, especially if there are a magnitude of trusts and businesses involved.

Forfeiture of the Patrimonial Benefits – when married with the accrual.

In terms of section 9 of the Divorce Act 70 of 1979, a court that grants a divorce has the discretion to make an order that the right to share in the accrualspouse’s accrual be forfeited.

What property is excluded from the Accrual Calculation?

In terms of section 4 of the Matrimonial Property Act, the following assets are excluded:

• Any non-patrimonial damages that a spouse receives during a marriage.

• Any assets that are specifically excluded in the Antenuptial Agreement, together with any assets that replace them, or which are acquired with their proceeds.

• Any inheritance, legacy or donation which a spouse receives from a third party, and assets that replace or are acquired with the proceeds of such assets, are excluded from the accrual of the recipient’s estate if the testator or donor stipulates this.

• Any donations between the spouses (while alive) are excluded from the accrual. It is presumed that proceeds and replacement assets are excluded only to the value of the donation.

How to Calculate the Accrual (A Step-by-Step Guide)

The accrual of a spouse’s estate is calculated by determining the amount by which their estates’ net value at the dissolution of the Marriage exceeds the net values at the commencement of the Marriage. One must deduct the net commencement value of the estate and the values of excluded assets from the estate’s net end value.

Therefore, the accrual is calculated by determining the values between the starting values and the estates’ end values.  The spouse who has a smaller estate has a claim for half of the difference between the accruals of both spouse’s estates.

Step 1: Establish the commencement value.

•  The net commencement value of an estate can be declared in the antenuptial agreement or a separate statement before or within six months of the wedding.

•  The other spouse must sign this statement, and a Notary must notarize it.

•  If the spouses fail to declare a commencement value, the value is deemed to be zero.

• If a spouse’s liabilities exceed the assets of that spouse, the value is also deemed to be zero.

• When the accrual is calculated, provision must be made for the fluctuating value of money. This is done by considering the weighted average of the consumer price index –known as the CPI. (This is published in the Government Gazette) and this is prima facie proof of any change in the value of money).

Step 2: Identify the assets that are excluded from the accrual calculations.

•  Non-patrimonial damages received by a spouse are excluded. (It is not clear if proceeds or replacement assets must be excluded).

•  All assets expressly excluded in the antenuptial agreement or statement and the proceeds of such excluded assets and assets that replace such excluded assets or are acquired with their proceeds are excluded from the accrual calculation.

•  Inheritances, legacies, or donations received from third parties that are excluded from the accrual by the testator or donor, and assets that replace or are acquired with the proceeds of these assets are also excluded from the accrual calculation.

• Any donations between the spouses are excluded from the accrual calculation.

Step 3:  Calculate the value of the exclusions on the commencement date.
(Look at step 4 re the example values)

Mr. X and Mrs. Y are married in 2010 in terms of an antenuptial agreement. At the time of the Marriage, Mr. X has no assets and had a clothing account of R10 000.

Mrs. Y has an investment of R100 000.00 and no debt. This investment is excluded in terms of the antenuptial agreement.

CPI Calculation: As published in the Government Gazette –(http://www.statssa.gov.za/publications/P0141/CPIHistory.pdf)

Thus: 115.9 divided by 70.7 = 1.639321

Therefore, the commencement value is multiplied by 1.639321:

The asset value of R100 000 x 1.639321 = R163 932.1

Therefore, the asset value of R100 000 is, on the date of divorce, worth R163 932.1

Step 4- The actual calculation – an example.

Mr. X and Mrs. Y are married in 2010 in terms of an antenuptial agreement. At the time of the Marriage, Mr X has no assets and had a clothing account of R10 000.

Mrs. Y has an investment of R100 000.00 and no debt. This investment is excluded in terms of the antenuptial agreement.

At the time of divorce, in 2020, Mr. X and Mrs. Y have net estates made up as follows:

Accrual Calculation

Therefore, Mrs. Y must pay R918033.95 to Mr. X.

What happens if a spouse seriously prejudices the other spouse’s right to share in the accrual at the dissolution of the Marriage?

Section 8(1) of the Matrimonial Property Act makes provision for the immediate division of the accrual if a spouse seriously prejudices or potentially seriously prejudice the other spouse’s right to share in the accrual.

This involves a High Court Application, and the Court will only make such an order if it is satisfied that this order will prejudice no other person.

Conclusion

This is a very fair and equitable marital system and is suitable for most people.

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