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Family Law Attorneys Pretoria

Family Law Practice

Antenuptial Agreements Pretoria

Antenuptial Agreements Attorneys in Pretoria

 Antenuptial Agreement Attorneys in Pretoria

The Matrimonial Property Act 88 of 1984 came into effect in 1984.

Since 1984 the following matrimonial regimes apply in South Africa:-

1. MARRIAGE IN COMMUNITY OF PROPERTY
2. MARRIAGE OUT OF COMMUNITY OF PROPERTY
3. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE INCLUSION OF THE ACCRUAL SYSTEM

Signing a antenuptial agreement will stipulate what happens to your estate on either death or divorce.


1. MARRIAGE IN COMMUNITY OF PROPERTY

This regime applies when the parties do not sign an antenuptial agreement. This can by done by choice, omission or ignorance of our law.

All the assets and liabilities of both parties will fall into one joint estate. Contractual capacity is usually limited as consent is needed in transactions that may encumber the joint estate.

In the event of sequestration the joint estate of the parties are at risk of attachment from creditors since you will have joint ownership and liabilities in the estate.


2. MARRIAGE OUT OF COMMUNITY OF PROPERTY

This regime will be concluded by signing an antenuptial agreement before the wedding is concluded.

Out of community of property means that you and your partner will have complete separate estates. Each party has unlimited contractual capacity in his/her own estate and each party’s assets and liabilities are separate from your party’s estate.

When parties are married out of community of property you are protected against creditors from the other party’s estate.

Marriages concluded before 1984 where automatically concluded in community of property. Should parties which to divorce who were married before 1984, the aggrieved party can apply to court for redistribution of the assets in terms of section 7(3) of the Divorce Act 70 of 1979.


3. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM

This regime will also be concluded by signing an antenuptial agreement. In this regime the assets and liabilities of the parties are distinguished before the marriage. All premarital assets and liabilities fall in two separate estates belonging to each party individually and owned by each party individually. Each party has control over his or her on estate.

t the dissolution of a marriage either by death or divorce, the spouse whose estate shows no accrual or shows a smaller accrual than the estate of the other spouse, has a claim against the estate of the other spouse for an amount equal to half of the difference between the accrual of the various estates.

General Rule:

The accrual of  the estate of a spouse is when the net value of the estate at dissolution of the marriage exceeds the net value of the estate as calculated at the beginning of the marriage.

The net value of the estate is after all debts of the estate has been deducted

Profits/asset include:
Salaries from the other spouse acquired after conclusion of the marriage;
Heritages and gifts acquired after conclusion of the marriage except where the donor indicated otherwise;
The fruits and proceeds of the assets above and the assets which were excluded.

Profits/assets does not include:
Appreciation of excluded assets;
The replacement of excluded assets;
Profit made out of the sale of excluded assets.

Liabilities include all debt with regards to the joint estate but not any losses that relates to the separate property.

When does the accrual system apply?

Section 3(1) of the Matrimonial Property Act states that by dissolution of the marriage, (whether by death of divorce) the party which estate does not show any growth or shows the least growth of the two estates, or his estate if he/she died, has a claim against the estate of the surviving spouse or the other spouse in the amount equal to half of the difference between the growth of the various estates.

Calculation of the accrual
How to calculate accrual

When the accrual system applies to a marriage, a calculation of the accrual benefit is made at the dissolution of the
marriage either by death or divorce.

The estate of the spouse which has shown:

  • no accrual;
  • or an accrual smaller than the estate of the other spouse;
  • acquires a claim against that spouse or his estate, for an amount equal to half of the difference,
    between the accrual of the estates of each spouse.

This method of calculation is prescribed in section 3(1) of the Matrimonial Property Act 88 of 1984 (MPA).

Method of calculation

The accrual of each spouse’s estate is accordingly:

  • The difference between the value of the estate at the commencement of the marriage; and
  • The value at the dissolution of the marriage, with the appropriate adjustments to those values for inflation.
  • There can never be negative accrual. If the value of the party’s estate at the dissolution of the marriage, is less
    than at the commencement of the marriage, then that party’s accrual value, is deemed to be nil.

In calculating the accrual, the commencement value, as declared in an antenuptial contract, is escalated to take
account of the change of value of money and the effects of inflation. This is done by applying the weighted average
of the Consumer Price Index (CPI) as published, from time to time in the Government Gazette to the starting value
of each spouse.

To give effect to the provisions of section 3 of the MPA, the following steps must be followed:

  • The commencement value of each spouse must be adjusted by the CPI to obtain a current monetary
    value of the commencement value of each spouse;
  • The net value of each spouse must be determined by subtracting the value of current liabilities from
    current assets;
  • The adjusted commencement value is subtracted from the current value to obtain the accrual of each
    separate estate;
  • The accruals are then added together;
  • The total obtained is then divided in half;
  • Each spouse must then receive one half of the accrual and the spouse who has accrued a greater value,
    is obliged to pay the difference to the other.The claim which one spouse has against the other is a claim, sounding in money and is not a claim to receive any particular asset or assets, although this can be agreed between the parties inter se.

In terms of section 4(2) of the MPA, the division of the accrual must occur, before effect is given to any testamentary
disposition, donation mortis causa or succession out of the estate of a deceased spouse, whether that spouse died
testate or not.
Any assets excluded by law or in terms of the antenuptial contract must, similarly be excluded from the calculation of
the accrual.

Our common law has long held that, the calculation of the accrual is merely an arithmetical calculation and in the
absence of any order for forfeiture, leaves no discretion in its application.

This approach is currently a subject of much debate and in the case MGB v DEB (2013) 4 All SA 99(KZD), Lopes J
quotes the dictum of Brassey AJ in the case of MB v NB [2010] JOL 25076 (GSJ), in his proposition that the
appropriate date of the calculation of the accrual is at litus contestatio. These cases are at odds with Le Roux v Le
Roux (2010) JOL 26003 (NCK), which holds in accordance with the historical view that the date for the calculation of the accrual is on the granting of the divorce order.

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