MATRIMONIAL LAW: Know your accrual system

Having three different matrimonial property regimes in South Africa can be confusing – especially when it comes to the accrual system. Many of our soon-to-be-wed clients come to us in a slight panic shortly before their special day with no idea of their options regarding the way that their matrimonial property and estates will be dealt with.

By default, South Africans marry in community of property. This is the classic regime of “Yours, mine and ours” – with certain exceptions, everything is shared between the spouses, which is often not desirable. In order to marry out of community of property, the intended spouses need to enter into an antenuptial contract (possibly more familiar as a “pre-nup” to those of you who enjoy American television), which can include or exclude the accrual system. By opting to be married out of community of property with the accrual, the individuals are allowed to act independently and only on dissolution of the marriage, through death or divorce, will the spouses be able to share equally in the fruits of their accumulated contributions. This is done by entitling the “poorer” of the spouses to half of the difference between the accrual in their two separate estates. It is worthwhile to note that spouses married with accrual only share in the profits realised during the marriage and not the losses.

Certain assets can be excluded from the accrual and will not form part of the pool of assets in determining the joint wealth arising from the marriage on its dissolution. This is done at the commencement of the marriage and it is up to the discretion of the parties to declare these assets in their antenuptial contract. There are, however, certain assets accumulated during the marriage which do not form part of the accrual in terms of the Matrimonial Property Act 1984. These include non-patrimonial damages which have accrued to the estate of a spouse (such as delictual claims for pain and suffering), inheritances, legacies or donations or any assets acquired by virtue of these inheritances, legacies or donations. The reason behind these exclusions is that the spouses should only share in the accrual accumulated during the subsistence of the marriage as a result of their joint efforts. Obviously something like an inheritance is not the result of the joint efforts of the spouses, but the actions of a well-meaning third party and it can therefore not be said to form part of the accrual. Although these assets are excluded by law, nothing can stop the donor or the testator from stipulating that the donation or the inheritance should form part of the accrual, in which case it will. The spouses may also agree that donations and inheritances form part of the accrual. However, should the donor or testator stipulate otherwise, it will not form part of the accrual. Testators who wish to leave something only for their children, and not their children’s spouses, should therefore take care to explicitly state so in their wills.

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