WHAT EXACTLY IS ACCRUAL AND HOW IS IT CALCULATED?
During the subsistence of the marriage each spouse retains their own estate. It is only upon the dissolution of the marriage that the spouses share in the growth of their estates. Thus one can say that with the accrual system there is a postponement of the community of profit. The spouse who has the smaller accrual, or no accrual at all, is provided with a claim against the other person’s estate. It is important to remember that this claim only arises upon the dissolution of the marriage. Also take note that the accrual system does not give the spouses any rights to each other’s property. The spouses only have a right in regard to the value of the growth in the estates.
In the case of the dissolution of a marriage as a result of death, the surviving spouse will be protected. Thus the accrual sharing takes place before the deceased’s estate is distributed among the deceased’s heirs.
Accrual is calculated as follows:
- Claim = ½ (larger accrual – smaller accrual)
The commencement value:
What about privacy?
Prospective spouses will be asked to declare the value of their respective estates as it is before the marriage.
The parties may declare the value of their respective estates in the antenuptial contract. As an alternative, the parties may, within 6 months after the date of the marriage, declare such values in a separate statement, attested by a notary and kept in his protocol.
The registered antenuptial contract is considered to be a public document as soon as it is registered and kept at the deeds office.
If you want to marry out of community of property with the accrual system but do not wish to make information such as the commencement values of your estates public, rather make use of the separate statement, as this will not be registered at the deeds office, but kept in the notary’s protocol.
Possible modifications to the accrual system:
Parties may include anything they wish in the antenuptial contract, as long as it is not contrary to public policy.
Examples of such modifications are:
- Parties may agree that the accrual system shall not operate on dissolution of the marriage when a spouse’s estate is insolvent.
- Parties may agree to exclude the accrual system in whole or in part. They may also agree to make the accrual system applicable only to certain assets or sources of income.
- A provision can also be made for a different percentage for the calculation of the accrual. For example ,parties may agree that the first spouse shall be entitled to only 40% and the second spouse to 60% of the accrual.
Assets excluded from the accrual:
- Non-patrimonial damage received during the marriage
- Any inheritance, donation or legacy, as well as the proceeds, income or any asset replacing such inheritance, donation or legacy.
- Donations as between the spouses, while alive.
- Any assets the spouses expressly excluded in the antenuptial contract, as well as any proceeds, income or any asset replacing such assets.
Note that the parties may expressly agree otherwise.
What About Postnuptial Registration?
Postnuptial registration of an already executed antenuptial agreement
If the already executed contract is not registered within the prescribed period, it is only valid between the spouses.
As far as third parties such as creditors are concerned the spouses are married in community of property.
The court may allow, on application, an extension period, but will only do so if the spouses can furnish convincing reasons why they failed to register the antenuptial contract timeously as well as evidence that the rights of third parties will not be affected.
Postnuptial execution and registration of an antenuptial contract
The court will only grant permission for the postnuptial execution and registration of an antenuptial contract if the spouses expressly or tacitly agreed to be married out of community of property before the marriage.
The parties must furnish adequate reasons to justify their failure to execute an antenuptial contract before the marriage.
Change of matrimonial property system
A joint application must be made to the court to change a matrimonial property system.
The parties must furnish acceptable reasons as to why they want to change to the new matrimonial property system.
No third party may be prejudiced and sufficient notice must be given to all creditors.
All formalities need to be complied with.
Why Do I Need An Antenuptial Agreement?
The law rebuttably presumes that all marriages are in community of property.
A valid antenuptial contract, that excludes community of property and community of profit and loss, will rebut the presumption.
Thus if you do not register an antenuptial contract at all ,or within the prescribed time limits ,you will be married in community of property.
What Is An Antenuptial Contract?
An antenuptial agreement is a:
• formal contract between two prospective spouses,
• executed before a notary,
• setting out the terms of ,and regulating the ownership and control of all assets and liabilities
• during the marriage
• as well as upon the dissolution of the marriage, whether by divorce or death,
• and, is registered in the deeds office in terms of the Deeds Registries Act 47 of 1937.
WHAT YOU NEED TO KNOW BEFORE YOU SAY “I DO”…
Let’s look at some facts you should keep in mind:
o Almost 1/2 of all South African Marriages end in the first 10 years.
o Contested divorce can cost up to R500 000 and may take several years to complete.
o The reality of the modern business world includes fraud, bankruptcy, theft and debt.
o There is a 100% chance that each and every person will die.
Of course no one contemplates divorce while in love and planning a wedding.”We love each other, we will never divorce”. “Antenuptial agreements are unromantic”.
The truth is love can be blind, people may change and divorce is a sad, but very realistic issue.
Even when you are fortunate enough to form part of the other half of the statistics and avoid divorce you will unfortunately not be able to avoid the 100% chance of eventually passing away.
Thus the importance of an antenuptial contract not only lies with the division of the assets and liabilities for purposes of bankruptcy or upon divorce, but also upon death of either spouse.
There is also absolutely no use in having a considerably drawn up will when you do not understand the ownership of the assets you dispose of in your will.
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