Understanding the Accrual System in South African Matrimonial Law

When getting married in South Africa, one of the most important financial decisions a couple makes is choosing a matrimonial property regime. The accrual system, governed by the Matrimonial Property Act 88 of 1984, offers a modern and equitable framework. It allows spouses to maintain separate estates during the marriage while ensuring that the growth accumulated during the partnership is shared fairly upon its dissolution by death or divorce.

This article explains the essentials of the accrual system, the role of the antenuptial contract, and how assets are treated.

What is the Accrual System?

The accrual system is the default for all marriages concluded out of community of property unless it is expressly excluded in an antenuptial contract. In simple terms:

• Separate Estates During Marriage: Each spouse manages their own property and is responsible for their own debts.
• Shared Growth: Upon the end of the marriage, the “accrual,” or the growth in the net value of both spouses’ estates since the wedding, is calculated. The spouse whose estate has shown less growth has a legal claim against the other for half the difference.

This system is designed to recognize the non-financial contributions a spouse may make to the marriage, ensuring both partners benefit from the couple’s overall economic growth.

The Antenuptial Contract (ANC): Your Legal Foundation

An antenuptial contract is a crucial legal document that prospective spouses sign before marrying to regulate the financial consequences of their marriage. To be valid and enforceable against third parties (like creditors), the ANC must be:

• Signed before the marriage ceremony.
• Attested by a qualified Notary Public.
• Registered in the Deeds Office within three months of being signed.

If the contract is not registered in time, it remains valid between the spouses but will not protect them from each other’s creditors.

How is the Accrual Calculated?

The accrual of an estate is the amount by which its net value at the end of the marriage exceeds its net value at the beginning.

• Commencement Value: The starting value of each spouse’s estate is declared in the antenuptial contract. This value is adjusted for inflation over the course of the marriage. Couples can also declare a commencement value of nil.
• Excluded Assets: Certain assets are automatically excluded from the accrual calculation unless the ANC states otherwise. These include:
• Inheritances, legacies, and donations received during the marriage.
• Assets acquired by virtue of possessing or replacing such excluded assets.
• Donations between the spouses (except for donations mortis causa—made in anticipation of death).

The Accrual Claim: Ensuring Fairness at Dissolution

The right to share in the accrual is a future claim that only becomes active when the marriage ends.

• A Protected Right: During the marriage, this claim cannot be transferred, attached by creditors, or form part of a spouse’s insolvent estate.
• Fair Distribution: The system ensures a fair outcome by recognizing the joint effort of both spouses in the accumulation of their wealth.

Drafting an Antenuptial Contract with the Accrual System

To correctly set up an ANC with the accrual system, the contract must explicitly state:

• That the marriage will be out of community of property and community of profit and loss.
• That the accrual system, as described in the Matrimonial Property Act, will apply.
• The commencement value of each spouse’s estate (which can be declared as nil).
• Any specific assets to be excluded from the accrual calculation beyond the standard exclusions.

The document must be signed by both parties in the presence of a notary and two competent witnesses before being registered.