“What is yours is yours, and what is mine is mine, but everything that we acquire during the marriage, will be divided equally when the marriage ends”
During the marriage, each spouse has his/her own separate assets and liabilities. The financial position is the same as in the option above (without the accrual system). The difference comes in when the marriage ends. Calculations are then done to determine if one spouse may have a claim against the other spouse.
A spouse will have an accrual claim against the other spouse, if his/her estate grew less during the marriage than the estate of the other spouse.
To calculate with how much each spouse’s estate grew during the marriage, the values and assets agreed in the ANTENUPTIAL AGREEMENT are used. The growths are added together and each spouse is entitled to a half thereof. The spouse with the smaller estate will have claim against the other spouse.
- Each spouse is only liable for his/her own debt during the marriage. Each spouse has his/her own assets.
- You will not need the written consent of your spouse to enter into any legal contract.
- If one spouse is sequestrated, only that spouse’s assets are sold to pay his/her debt.
- In the ANTENUPTIAL AGREEMENT, each spouse must declare his/her:
- NET START VALUE: Add up the value of ALL your assets (excluding the EXCLUDED ASSETS mentioned below) and deduct all your debt. The balance in Rand is your NET START VALUE.
- EXCLUDED ASSETS: Any asset, that you currently have, may be excluded from the accrual system. The asset is kept separate and not taken into account when the start value or end value of the spouse are calculated. In other words, it is ignored when the growth in a spouse’s estate is calculated and therefor will not be subject to a possible claim from the other spouse. Examples of excluded assets are immovable property, pension, investments, shares or any other asset that grows in value.
- Should there be a difference in the growths of between the spouses’ estates, the spouse with the bigger growth must pay half of the difference to the spouse with the smaller growth so that each will have a half share of their combined growths
- Inheritances and donations are also excluded by the Law from the accrual calculations and not taken in account when the growth in the estate of a spouse is calculated.
- Herewith an example of the accrual calculations:
End Value R20 000
Less: Start Value R10 000
Less: Excluded Assets R 2 000
Less: Inheritance R 0
R 8 000
End Value R40 000
Less: Start Value R20 000
Less: Excluded Assets R 0
Less: Inheritance R 2 000
TOTAL GROWTH (ACCRUAL) ACCUMULATED: R26 000
Total accrual is divided 50/50 between spouses = R13 000 each
- You may consider getting married WITH the accrual system, if you foresee that due to the circumstances known or unknown to you, your estates may not grow equally during the marriage. One spouse may not be able to grow his/her own estate, but will be contributing directly, or indirectly, to the growth of the other spouse’s estate. This may result in an unfair situation when the marriage ends and you will rather share in the growths of each other’s estates.