The Two Options

Unless it is expressly excluded in your Antenuptial Contract, the accrual system will automatically apply under the Matrimonial Property Act of 1984. 'Accrual' means increase and by applying the accrual system, couples will share the assets that are built up during the marriage. The basic underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, whereafter they then share what they each have built up during the marriage. However, it is also possible to draft the Antenuptial Contract in such a way that the parties share both their pre-marital and post-marital assets on an equal basis, as if they were married in community of property, but without incurring any liability for the other’s debt.

 

Marriage out of community of property WITHOUT application of the accrual system

You must specifically be exclude the accrual system in your Antenuptial Contract, unless you want it to be applied. Exclusion of the accrual system will result in a complete separation of the couple’s individual estates (it will apply to all assets brought into the marriage, as well as those acquired during the marriage). Therefore, each spouse will retain exclusive ownership of his or her own separate individual estate.

On dissolution of the marriage, there will thus be no sharing of assets or liabilities and neither spouse will have any claim against the assets of the other, in other words, there is no sharing of profit or loss. On dissolution of the marriage, the Court will have no discretion to adjudicate the division of assets on the basis of equity or fairness.

 

Marriage out of community of property WITH application of 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, by either death or divorce. 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 specific spouse’s nett wealth has increased over the period of the marriage.

 

The claim will be limited to 50% of the value of which the one party’s estate exceeded the growth of the other’s estate. In order to simplify and facilitate the aforementioned calculations, the parties should declare the net value of their possessions at the beginning of the marriage in their Antenuptial Contract, in detail and as accurately as possible.

 

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