South African matrimonial property regulation recognises three distinct regimes being the marriage in Community of Property, Out of Community of Property with the Accrual system and the Out of Community of Property without the Accrual system.
While an indivisible joint estate subsists in marriages in community of property, marriage out of community of property without the accrual system can be said to be the exact opposite, as spouses own assets exclusively of each other’s estate. However, marriage out of community of property with the accrual system seems to be a compromise between the aforementioned two systems.
The accrual system was introduced by the Matrimonial Property Act 88 of 1984 (MPA). In this system, the underlying principle is that spouses only share the growth (accrual) in their separate estates, meaning the difference in the estate that showed the most growth. Spouses that wish to exclude the accrual system in their matrimonial property system ought to specifically provide so in their Antenuptial Contract, otherwise it will be applicable by default.
How then is Accrual calculated?
The determination of accrual becomes important at divorce or at death. The Executor of the deceased’s estate will be required to determine the accrual of the estate of the deceased to calculate how much will fall into the deceased estate. For divorce purposes it will be to determine how much must be liquidated and divided between the divorcing spouses.
Our Family Law Department assists with notarization and registration of Antenuptial Contracts, Divorces, Child Justice and Child Care, Maintenance matters as well as a wide array of other matters. Our approach is professional and comprehensive.
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