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:
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
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 Contract||-R20,000|
|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 Contract||-R10,000|
|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|
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.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.
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 (i.e. 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.