Understanding Accrual – Antenuptial Contracts In South Africa

 

If you are looking for a fair and equitable marriage regime, the “Marriage Out of Community of Property subject to the Accrual System” is your best bet. It is also one of the more popular marriage regime choices. Unfortunately, even though this is the most sought-after way to get married, many couples do not fully grasp the accrual system or how their assets might get divided in a divorce.

An antenuptial contract must support your marriage if you wish to include the accrual system. The accrual system sets out the financial consequences of your union in terms of the possession of assets, how assets will get split in the event of dissolution, and ownership and control of property.

The great thing about the accrual system is that it allows partners to freely change all or some of the financial consequences of their marriage, thus allowing them to create their own matrimonial property system. It is vitally important that couples going through a divorce take heed of their antenuptial contract when trying to understand what assets should be included or excluded.

 

Understanding Accrual: How To Implement This Marital Regime

If you want to marry “Out of Community of Property subject to Accrual System,” you and your partner must sign an antenuptial contract before your marriage or within six months of it taking place.

A notary must authenticate the contract, and this authentication, along with a copy of the antenuptial contract, must be filed in the notary’s protocol. You will then get a certified copy of the authentication and your signed antenuptial contract furnished to you by the notary.

The legalities of antenuptial contracts are set out in the Matrimonial Property Act 88 of 1984, Chapter 1. The accrual system allows you to stipulate that what was yours before the marriage will remain yours, and what you gained throughout the marriage belongs to you and your spouse.

 

Understanding Accrual: Commencement Values

Within the antenuptial contract, you must declare the net value of your estate at the commencement of your marriage. This declaration allows the antenuptial contract to document the value of each spouse’s estate at the beginning of the union. The resulting value will form the basis of the accrual calculation in the event of a divorce.

The antenuptial contract will deem your commencement value as nil if:

• Your liabilities exceed your assets at the commencement of the marriage.
• You did not declare the value in your antenuptial contract or any subsequent statement within six months after you signed your marriage documents.

 

Understanding Accrual: What To Exclude When Calculating Accrual

Typically several assets would generally get excluded from the accrual calculations, and these include the following:

• Any asset declared in the antenuptial contract or acquired through the spouse’s possession or previous possession of that asset.
• Any amount a spouse accrued through damages, excluding those accrued through patrimonial damages.
• Any donations that one spouse made to the other.
• Any legacy, inheritance, or donation that a spouse received during the marriage or any asset they acquired through a previously possessed legacy, inheritance, or donation. Unless otherwise stated in the antenuptial contract.

 

Understanding Accrual: The Accrual Calculation

The first thing you should note here is that, by and large, the two spouses’ estates will remain entirely separate until the marriage is dissolved either by death or by divorce, according to the Divorce Act 70 of 1979. If the couple decides to dissolve their marriage through a divorce, only the assets acquired during the marriage will be considered when calculating the accrual.

To determine each estates accrual, you should follow these steps:

• Draft a list of all your assets, including any furniture, immovable property, annuities, vehicles, investments, pension interests, policies, interests such as loans or shares, bank accounts, etc., obtained during the marriage at listed at present-day values.
• Deduct any assets that you excluded in your antenuptial contract, including any assets you acquired through former or present possession of those excluded assets.
• Deduct any legacies, inheritances, or donations, including any other assets you might have acquired through the present or former possession of the legacies, inheritances, or donations.
• Deduct any liabilities or debts.
• Deduct your commencement value as stated in your antenuptial contract, adjusted by the consumer price index (CPI).
• Finally, the net result after deductions will be the estate’s accrual.

 

An Example Of An Accrual Calculation In The Event Of Divorce

Explanations of how the accrual system works might be difficult to understand, so let’s discuss an example of an accrual calculation.

Mr. and Mrs. Fairchild married in December 2015 and decided to start divorce proceedings in October 2022. Mrs. Fairchild had a commencement value of R1 500 000, and Mr. Fairchild had a commencement value of NIL. At the date of divorce, Mrs. Fairchild’s estate was valued at R3 000 000, and Mr. Fairchild’s estate was valued at R250 000.

To calculate the CPI, visit www.statssa.gov.za and click on the Historical CPI tab to download the PDF detailing the historical CPI values. Then you would follow these steps:

• December 2015 = 74.1
• October 2022 = 106.8
• Thus: 106.8 / 74.1 = 1.4412
• R1 500 000 x 1.4412 = R2 161 800 (Adapted Value)

 

To calculate accrual, you would now follow these steps:

Mrs. Fairchild

• R3 000 000 – R500 000 (liabilities and debt deductions) = R2 500 000
• R2 500 000 – R2 161 800 (commencement value adjusted by CPI) = R338 200

= Mrs. Fairchild’s accrual is R338 200

 

Mr. Fairchild

• R250 000 – R100 000 (liabilities and debt deductions) = R150 000

= Mr. Fairchild’s accrual is R150 000

 

You would then deduct Mr. Fairchild’s accrual from Mrs. Fairchild’s accrual, leaving you with R 188 200. Mr. Fairchild is entitled to 50% of R188 200, which amounts to a claim of R94 100 against his wife’s estate.

If you add Mr. Fairchild’s accrual to the claim amount, you will get a total growth of R244 100, the exact amount of accrual Mrs. Fairchild will have after the claims deduction. Thus, Mr. and Mrs. Failrchild’s estates will have grown by the same amount since the inception of their marriage.

 

Accrual And Deceased Estates

If you or your spouse dies, the accrual claim must be paid before an intestate succession or a will can be enacted. If the surviving spouse’s accrual is less than the deceased, then the surviving spouse will have a claim on the deceased’s estate. At the same time, if the surviving spouse has a larger accrual, the deceased’s estate will have a claim on the surviving spouse.

You will not need to calculate accrual if the surviving spouse is the sole heiress or heir to the deceased’s estate through a will or intestate succession.

Calculating accrual can be tricky, whether for a divorce or a deceased’s estate. The optimal course of action would be to hire a family lawyer who is experienced in these matters. They will be able to ensure that all calculations are carried out accurately and legally.

Our Burnett Attorneys & Notaries team has extensive knowledge of antenuptial contracts and divorce procedures. We understand that these situations can get challenging, and we try to engage with each of our clients in a manner that suits their situation the best. If you have any questions or want advice, please don’t hesitate to contact us.