The accrual system

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property there was no form of sharing between them of what was built up during the marriage.

 

The accrual system was introduced to remedy this. It is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract. In terms of this regime, both spouses have separate estates during the subsistence of the marriage and do not share each other’s profits or losses during the marriage.

 

This system has all the advantages of the protection afforded to marriages concluded out of community of property i.e. that assets of one spouse are secure from the creditors of the other spouse, but it incorporates the ethic of sharing, which is the basis of an in community of property marriage. In other words, while neither spouse will be liable for the other spouse’s debts, the parties will, however, share what they have acquired during the subsistence of the marriage.

 

This sharing only occurs upon dissolution of the marriage. This regime of marriage allows for very imaginative and flexible estate planning. The ‘accrual’ is the extent to which the respective spouses have become richer by the end of the marriage, in other words, the amount by which the spouses’ joint wealth has increased over the period of the marriage. The spouse with the smaller accrual has a claim against the one with the greater accrual for half of the difference between the two amounts.

 

An example of how accrual is calculated 

The starting point is that the parties are married out of community of property, so the assets are not jointly owned nor are the debts joint debts. Each party still has a separate estate. On dissolution of the marriage, either by death or divorce, the accrual or growth to each party’s estate is worked out. This is done by calculating the net value at dissolution less the net value at commencement of the marriage, as declared in the Antenuptial Contract.

 

If one of the estates has grown more than the other during the marriage, the party with the smaller growth has a claim against the party with the greater growth, for half the difference. The parties may, in their Antenuptial Contract, declare the net value of their possessions at the beginning of the marriage. Alternatively, a marriage partner may, before the marriage or within six months of it, declare his or her net worth in a written statement, signed by the other partner and attested by a notary (who will usually be the one attending to their Antenuptial Contract). The notary files the statement with the copy of the Antenuptial Contract in the official record, known as the protocol.

 

If either partner’s debts at the time of the marriage exceed the value of his or her property, the net value of his or her estate at the start of the marriage is regarded as nil. Also, if either partner fails to state the value of his or her property in the Antenuptial Contract or in a separate statement, his or her estate at the time of the marriage will be valued at nil, unless there is other proof of its value. If a partner’s estate on marriage is regarded as nil, everything he or she owns at the end of the marriage will be treated as having accrued during the marriage, unless it can be proved that the property belonged to him or her before the marriage took place.

 

Certain property belonging to either spouse may not be taken into account when the accruals are worked out:

  • Any damages awarded to either spouse for defamation or for pain and suffering;
  • Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their Antenuptial Contract to include these, or the donor has stipulated their inclusion;
  • A donation made by one spouse to the other. This is not taken into account as part of either the giver’s or the receiver’s estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.
  • Compensation for injury received during the marriage.

 

When calculating the values of the dissolution of the marriage, allowance is made for any difference in the value of money at the commencement and the dissolution of the marriage, usually with reference to the consumer price index (i.e. the inflation rate).

 

 The total asset value of the husband’s estate at dissolution of the marriage  R350,000
 LESS his total liabilities/debt at dissolution of the marriage  -R200,000
 The current value of the husband’s estate  R150,000
 LESS the commencement value of his estate, stated in the Antenuptial Contact -R20,000
 Subtotal  R130,000
 LESS adjustment for inflation on commencement value  -R10,000

 Husband’s accrual or growth

R120,000
 

 

The total asset value of the wife’s estate at dissolution of the marriage

R125,000
 LESS her total liabilities/debt at dissolution of the marriage   -R35,000
 The current value of the wife’s estate  R90,000
 LESS the commencement value of her estate, stated in the Antenuptial Contact  -R10,000
 Subtotal  R80,000
 LESS adjustment for inflation on commencement value    -R5,000
 Wife’s accrual or growth R75,000
   

 Husband’s accrual or growth

R120,000
 LESS Wife’s accrual or growth   -R75,000
 Amount with which the husband’s accrual exceeded the wife’s accrual                R45,000

 

The wife will therefore be entitled to 50% of R45,000 which will amount to a claim of R22,500 against the husband's estate. This amount of R22,500 added to the wife’s accrual will result in a total growth of R97,500, exactly the same amount as the husband’s growth will be after deduction of the wife’s claim. Both their estates would therefore have increased by the same value since the marriage.

 

An accrual claim can only be made on dissolution of the marriage, not during the marriage. If the marriage is dissolved by death, a claim in terms of the accrual system must be paid before the will or intestate succession is given effect to. If the estate of the first dying spouse has a greater accrual, the surviving spouse would have a claim against the deceased estate. If the estate of the surviving spouse has a greater accrual, the estate of the deceased spouse would have a claim against the surviving spouse. If the surviving spouse is the sole heir/heiress by virtue of the will or of intestate succession (ie how an estate devolves when a person dies without leaving a will) then it is academic. It is not necessary to work out the accruals, as the surviving spouse receives everything anyway.

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