Marriages out of community of property subject to the accrual system

These principles apply to a marriage out of community of property with accrual:

1)Both spouses have separate estates when they get married and don’t share profits or losses during the marriage. They are basically in the same position as spouses who marry out of community of property with complete separation of property. 2) Each spouse retains the estate they had before the marriage, and everything a spouse acquires during the subsistence of the marriage falls into their estate. Each spouse controls their estate. 3) The spouses are not liable for each other’s debts except for being jointly and severally liable to third parties for debts incurred by either in respect of household necessities. 4) Accrual sharing occurs only at the dissolution of the marriage (on death or divorce) when the spouses (or their estates) benefit equally from the gains or profits made during the marriage. The accrual system is a type of postponed community of profit or a deferred community of gains. 5) Section 8(1) of the Matrimonial Property Act (the Act) protects a spouse whose rights are seriously prejudiced by the other spouse’s conduct. In that case, a court may order the immediate division of the accrual on such basis as the court deems just. 6) In terms of section 4(1)(a) of the Act, the accrual in a spouse’s estate must be determined by first deducting the net value of the spouse’s estate at the commencement of the marriage (the net initial value) from the net value of their estates upon the dissolution of the marriage (the net end value). In terms of section 6(1) of the Act, a spouse may declare the net initial value of his or her estate in the antenuptial contract or in a separate statement either before or within six months of the wedding. If the net initial value was not so declared or a spouse’s liabilities exceeded his or her assets at the commencement of the marriage, their net initial value is deemed nil. 7) Secondly, to determine the accrual in a spouse’s estate, the value of certain excluded assets as listed in sections 4 and 5 of the Act must also be deducted from the net end value of the spouse’s estate. Such excluded assets comprise the following:

  • Any non-patrimonial damages a spouse receives during the marriage
  • Assets specifically excluded from the antenuptial contract accrual and any inheritance, legacy, or donation that a spouse receives during the marriage. The Act provides that the proceeds of such assets and assets which replace such assets are also excluded.
  • Donations inter vivos between the spouses.

Accrual sharing upon dissolution through divorce

Section 3(1) of the Act provides that the party whose estate shows the smaller accrual or no accrual upon divorce may claim from the other spouse an amount equal to half the difference between the accrual in the parties’ respective estates. The accrual system only gives rise to a monetary claim and does not give the spouses rights concerning each other’s property. A party’s contingent right to share in the accrual of the other party’s estate becomes perfected on the date of divorce.

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