Do Declared Commencement Values in Antenuptial Contracts Bind You When Calculating the Accrual Claim? Lessons from Manelis v Manelis
Key Takeaways
Written by Roy Bregman, admitted attorney with over 51 years’ experience in South African family and matrimonial property law.
When couples get married in South Africa, the law must determine how their assets will be treated if the marriage ends through divorce or death. This is regulated by antenuptial contracts (ANCs) and, in many cases, the accrual system.
An antenuptial contract is a legal agreement signed before marriage. It sets out whether spouses will share in each other’s wealth and, if so, to what extent. One of the most common matrimonial property regimes in South Africa is marriage out of community of property with accrual.
The accrual system applies when spouses are married out of community of property with accrual.
In simple terms:
The purpose of the accrual system is fairness. It recognises that both spouses usually contribute to the marriage, even if only one earns an income.
An antenuptial contract determines:
An ANC may exclude:
If an asset is properly excluded, its value at the start and end of the marriage is not shared when accrual is calculated.
However, many disputes arise because ANCs often exclude the asset but say nothing about its growth or income.
Section 6(3) of the Matrimonial Property Act 88 of 1984 deals with assets that are listed as excluded in an antenuptial contract.
In plain language:
This is a common misconception. Many spouses assume that excluding an asset automatically excludes everything connected to it. That is not always correct in law.
Poorly drafted antenuptial contracts can lead to:
Clear wording is essential, especially where assets such as businesses, investments, or property are involved.
The case of Manelis v Manelis ZASCA 55 clarifies how commencement values recorded in antenuptial contracts operate within the South African accrual system. Under section 4 of the Matrimonial Property Act 88 of 1984 (MPA), accrual is the amount by which a spouse’s net estate at dissolution exceeds its net value at commencement, and the spouse with the smaller or no accrual acquires a claim to half the difference.
Section 6 of the MPA regulates how the commencement value is proved and distinguishes between values declared in an antenuptial contract and those recorded later in a notarial statement. Section 6(3) provides that an antenuptial contract “contemplated in subsection (1)” or a statement in terms of section 6(1) serves as prima facie proof of the commencement value, while section 6(4)(b) deems the value to be nil where no declaration is made and the contrary is not proved. The core issue in this appeal was whether a commencement value expressly declared in an antenuptial contract is only prima facie proof (and thus open to attack on the facts) or constitutes conclusive, binding contractual proof.
The parties, Dominique Camilla Manelis (applicant) and Constantinos Charles Manelis (respondent), were married out of community of property, subject to the accrual system, in terms of an antenuptial contract concluded on 29 April 2009. In the antenuptial contract, the wife declared the net value of her estate at commencement as nil, and the husband declared his commencement value as R68,7 million.
In 2015 the wife instituted divorce proceedings in the Gauteng Division, Johannesburg, seeking, among other relief, a decree of divorce, orders regarding their minor son, rehabilitative maintenance and an accrual claim. The divorce and ancillary orders were granted in March 2022, and the patrimonial issue—whether any accrual was payable—was postponed. The wife contended that the husband’s declared commencement value was overstated and sought an order directing him to furnish a statement of account supported by documents, a debatement, and an order binding him to a revised commencement value, with payment of half the difference in accrual.
On 29 June 2022 the High Court dismissed her accrual claim, holding that the parties were bound by the declared commencement value in the antenuptial contract and that there was no accrual, as the husband’s estate at dissolution did not exceed the commencement value. The High Court also refused leave to appeal, but the Supreme Court of Appeal (SCA) granted leave under section 17(2)(d) of the Superior Courts Act because conflicting judgments existed on the interpretation of section 6(3) of the MPA.
The SCA surveyed two competing lines of authority on section 6(3). In Olivier v Olivier and Jones v Beatty NO, as well as M v M and the full court decision in NHM v HMM, the courts held that parties are bound by commencement values declared in their antenuptial contract and may only challenge them on recognised contractual grounds. These cases treat the antenuptial contract as conclusive proof of the agreed commencement values, not merely prima facie proof.
By contrast, Thomas v Thomas and TN v NN held that section 6(3) applies equally to antenuptial contracts containing declared commencement values and to statements under section 6(1), with the result that such documents provide only prima facie proof of the commencement value. In TN v NN the court went further, suggesting that, whatever was declared (or not declared) in an antenuptial contract, it should always remain open to interested parties to prove the “actual” commencement value as an objective fact.
The conflict centred on whether the wording “antenuptial contract contemplated in subsection (1)” in section 6(3) was inserted erroneously and whether the Legislature intended to alter the common law principle that parties are bound by their contracts, including agreed commencement values in antenuptial contracts.
The SCA emphasised that South Africa’s matrimonial property system is rooted in party autonomy and contractual choice, particularly through antenuptial contracts that regulate the matrimonial property regime. The Court held that section 6 distinguishes clearly between:
Where the commencement value is declared in the antenuptial contract, that contract—subject to the ordinary common law of contract—serves as conclusive proof of the commencement value and binds the parties, unless attacked on recognised grounds such as misrepresentation, duress, undue influence, fraud, or common error (in which case rectification may be sought).
Section 6(3), when properly read with sections 6(1) and 6(4)(b), applies only to:
In such cases, the antenuptial contract without a declared value, or the later statement, provides only prima facie proof of the commencement value, and the deemed value of nil under section 6(4)(b) can be displaced by evidence. The Court rejected the suggestion that the words “contemplated in subsection (1)” in section 6(3) were erroneously inserted, relying on the interpretive presumption that every word in a statute must be given meaning and that statutes are not lightly assumed to alter the common law without clear indication.
The SCA therefore held that Thomas and TN v NN were wrong to treat both antenuptial contracts with declared values and section 6(1) statements as merely prima facie proof, and wrong to assume the Legislature intended to override the common law of contract in this way.
In this matter, both spouses declared the commencement values of their estates in their antenuptial contract, with the husband’s net commencement value recorded as R68,7 million. The parties agreed that, adjusted by the consumer price index (CPI), this commencement value equated to R129 million as at a date six days before dissolution of the marriage on 24 March 2022.
The wife did not plead or rely on any common law ground to attack or rectify the antenuptial contract but instead invoked section 6(3) to try to re‑open the commencement value and argue that the husband’s estate had accrued by approximately R36 million. The SCA held that her reliance on section 6(3) was misplaced because that provision does not apply where commencement values are declared in the antenuptial contract; in such a case the contract is conclusive proof. On the agreed legal position, the commencement value to be used for accrual purposes was therefore R129 million (CPI‑adjusted).
On the accrual calculation, the Court accepted that even on the wife’s own expert evidence (Mr Sacks), the value of the husband’s estate at the date of dissolution was approximately R117 199 381. This was less than the CPI‑adjusted commencement value of R129 million, meaning there was no positive accrual in the husband’s estate, as accrual cannot be a negative amount. The wife had thus failed to discharge the onus of proving that an accrual existed, and her accrual claim necessarily failed.
The SCA granted leave to appeal but dismissed the appeal with costs, including the costs of two counsel and the application for leave to appeal, and ordered the wife to pay the costs of the application for condonation for the late filing of the appeal record, given that the delay resulted from her attorney’s inaction.
The judgment confirms that commencement values expressly recorded in antenuptial contracts under the accrual system are contractually binding and serve as conclusive proof between the spouses, absent a successful contractual challenge. Section 6(3) does not give a spouse a general licence at divorce to re‑litigate agreed commencement values on the basis of alleged factual inaccuracy; the proper route is to attack the antenuptial contract itself on recognised grounds if the recording is said not to reflect the parties’ true agreement.
For practitioners, the decision underscores the importance of careful, accurate and properly explained recording of commencement values in antenuptial contracts, and of advising clients that these values will bind them at divorce unless set aside or rectified on solid contractual grounds. For clients, it highlights that attempts to revisit “overstated” commencement values at the stage of divorce, without more, are unlikely to succeed and that an accrual claim will fail if the estate at dissolution does not exceed the agreed (and CPI‑adjusted) commencement value.
Q: Can I challenge the commencement value recorded in my antenuptial contract during divorce?
A: Not simply because you now believe it was wrong. Where the value was declared in the antenuptial contract, it is binding unless you can attack the contract on grounds such as misrepresentation, fraud, duress, undue influence or common error and seek rectification.
Q: When Can an Antenuptial Contract Be Rectified or Set Aside?
A: An antenuptial contract is a formal notarial agreement, and courts are slow to interfere with it. That said, an ANC may be rectified or set aside in limited circumstances.
This may happen where:
Rectification is not about changing the deal after the fact. It is about ensuring the ANC accurately reflects what the parties intended at the time it was signed.
Q: When does section 6(3) of the Matrimonial Property Act apply?
A: Section 6(3) applies where no commencement value was declared in the antenuptial contract and a later statement is made, or where the value is deemed nil under section 6(4)(b); in those cases, the document or deemed value provides only prima facie proof that can be rebutted.
Q: What happens if my spouse’s estate is worth less at divorce than the CPI‑adjusted commencement value?
A: Then there is no accrual in that spouse’s estate, because accrual is the amount by which the net value at dissolution exceeds the net value at commencement; a negative difference does not create an accrual claim.
Q: What practical steps should I take when signing an antenuptial contract?
A: Ensure the commencement value of your estate is carefully calculated and correctly recorded and get clear legal advice about how that value will bind you in future accrual calculations.
Q: What Evidence Do I Need to Prove an Accrual Claim?
A: To succeed with an accrual claim, a spouse must prove both the commencement value and the value of the estate at dissolution.
Typical evidence includes:
If no commencement value is stated in the ANC, the law may assume it to be nil, which can significantly affect the accrual calculation.
Accrual claims are often evidence-heavy and can quickly become complex, particularly where businesses, trusts, or overseas assets are involved.
If you are married out of community of property with accrual, or you are considering an antenuptial contract and are unsure how commencement values will affect your financial position on divorce, contact Bregman Moodley Attorneys for tailored, practical advice. Use our online contact form or call our Johannesburg office to arrange a consultation and ensure your antenuptial contract and accrual arrangements protect your interests.