Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
The accrual system came into operation with the introduction
of the Matrimonial Property Act, 1984. Prior to the changes
brought about by the Act, there were effectively two types of
marriage:
- In community of property, which meant that money and
possessions belonging to either of the spouses at the
time of the marriage, or acquired by them afterwards,
became part of a joint estate supervised by the husband
in which each spouse had an equal, undivided share;
or
- By antenuptial contract,
in which each spouse usually retained his or her separate
property and had complete freedom to deal with that
property as he or she chose. If one partner was declared
insolvent, the other's property was protected from the
insolvent spouse's creditors.
However, since the implementation of the Matrimonial Property
Act, 1984, couples marrying by antenuptial contract that excludes
community of property will automatically be married under the
accrual system unless they insert a clause in the contract
expressly excluding it, in which case their property rights will
be as before.
Under both pre-1984 antenuptial contracts and the accrual
system, one spouse's property cannot be sold to pay the other's
creditors if the other becomes insolvent - in contrast to the
case where the parties are married in community of property.
A civil marriage entered into between African persons before 2
December 1988 is automatically out of community of property and
the accrual system does not apply. However, partners to such a
marriage may adopt the accrual system simply by entering into a
contract to that effect before a notaryI.
Since the amendment of the Matrimonial Property Act, 1984, by
the Marriage and Matrimonial Property Law Amendment Act, 1988,
there has been no distinction between the racial groups.
How the accrual system works
In most cases the accrual system is, perhaps, the fairest
marriage system for the majority of couples.
When a couple marry according to the accrual system, the
spouses do not share their property during the marriage, but when
the marriage ends by death or divorce, each spouse acquires a
certain right to the other's property.
The 'accrual' is the extent to which the husband and wife 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.
The effect of this system is that each partner retains as his
or her exclusive property, for all time, anything that he or she
owned at the time they became married. But anything that either
spouse obtains during the marriage may have to be shared with the
other partner when the marriage comes to an end. An inheritance,
a legacy, a donation or compensation for injury received during
the marriage will not, however, have to be shared on dissolution
of the marriage as an accrual unless agreed to by the spouses in
their antenuptial contract, or unless stipulated by the testator
or donor.
Before you get married
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.
When the marriage ends
When it becomes necessary to work out the amount of the
accrual on the death of a spouse or on divorce, each spouse or
the executorI of the deceased partner's estate can compel the
other spouse to supply full particulars of the value of his or
her assets at the time.
When the accrual is calculated, the value of each party's
estate at the time of the marriage (the commencement value) will
be adjusted proportionally to bring it into line with the value
of money at the present time. The weighted average of the
Consumer Price Index, which is published regularly in the government gazette, must be taken
into account in order to determine the change in the value of
money over the period of the marriage.
Once the difference between the accruals of the two parties
has been halved, it may happen that one partner owes the other a
large amount of money. To avoid hardship, that partner may apply
to a judge for an order to defer payment of all or part of this
debt to a date in the future.
Alternatively, the judge may order that the debt be paid in
instalments or by the transfer of specific assets to the partner
to whom the debt is due. In most cases, an arrangement will be
made for the partner who is in debt to the other to provide some
form of security and to pay interest if payment in full is not
made immediately. This may be made part of the order granted by a
court on divorce.
If one partner's behaviour severely impairs (or may impair)
the other's right to share in his or her accrual, a Supreme Court
judge may order that the accrual be divided immediately, in any
proportion that seems fair in the circumstances, as long as no
third parties, such as creditors, are prejudiced by such an
arrangement.
In this way a wife may prevent her husband from making large
gifts to, say, his mistress, in order to defraud the wife of her
rightful share of his accrual. The court may, at the same time,
order that the accrual system no longer be applied to the
marriage and that, in future, the pre-1984 system of marriage out
of community of property, in which the estates of the parties are
permanently and entirely separated, should govern the marriage
instead.
If the marriage ends in divorce, and one party is clearly
responsible for its breakdown, the court granting the divorce may
order the guilty partner to forfeit, wholly or in part, any right
that he or she might otherwise have had to share in his or her
spouse's accrual. Whether the court orders forfeiture will depend
on how severe a view the court takes of the guilty partner's
misbehaviour, which must be substantial, and on the duration of
the marriage.
Property that does not accrue
Certain property belonging to either the husband or the wife
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.
