The starting point is the fact that the parties are married ‘out of community of property’ and thus the assets are not jointly owned, nor are the parties responsible for each other’s individual debts. Each party has a completely separate estate from that of his or her spouse. Only on dissolution of the marriage, either by death or divorce, the accrual (growth) in each of the individual estates is calculated.
This is done by deducting the net value of each party’s estate at commencement of the marriage, as declared by the parties in their Ante-nuptial Contract, from the net value of the specific estate at dissolution of the marriage. 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. The claim is 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 Ante-nuptial Contract, as accurately as possible.
Do note that a marriage partner may also within six months of the marriage, 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 that attended to their Ante-nuptial Contract). The notary will file the statement with the copy of the Ante-nuptial Contract, in an 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 to be regarded as nil. Also, if either partner fails to state the value of his or her property in the Ante-nuptial Contract or in a separate statement, his or her estate’s value at the time of the marriage will also be regarded as nil.
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 calculated:
- 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 Ante-nuptial 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 at 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 wife will therefore be entitled to 50% of R45,000 which will amount to a claim of R22,500 against the husbands 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 (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.