Legal Articles

Divorce and the Accrual Calculation

There is a particular formula applied to accrual calculation for couples who are married out of community of property with accrual and are faced with divorce or death of one spouse.

Accrual System in South Africa Calculation

Accrual is defined as the accumulation or increase of something over time. When referring to marriage out of community of property with accrual, we refer to a type of contract entered into by the couple before solemnising their marriage.

This contract ensures that each spouse’s respective assets obtained before their marriage remain theirs after divorce or death; while all assets obtained after getting married are shared between the two spouses according to the specifications in their contract.

Such a contract may also be referred to as an antenuptial contract with accrual.

Accrual System on Divorce – Accrual Calculation Example

The accrual system helps determine how much the party with a bigger accrual during the duration of the marriage will have to pay over to the party whose assets showed a smaller accrual during this time.

However, it’s important to note that the claim on a spouse’s assets is limited to 50% of the growth value which exceeds the other spouse’s growth value.

In other words, if spouse A accrued R100 000 and spouse B accrued R50 000, then the difference between the values is R50 00. Therefore, spouse B is only entitled to a maximum claim of R25 000.

In order to simplify the process of accrual calculation, it’s imperative that both parties accurately declare the value of their respective estates in the antenuptial contract, before officialising their marriage.

However, any married partner has up to 6 months after the date of marriage to declare his or her net worth. This must be done in the form of a written statement and must be signed by the other spouse, as well as attested by the same notary who drafted the couple’s antenuptial contract.

How to Calculate Accrual

• Determine the value of assets such as but not limited to:

1. Pension interest
2. Policies
3. Investments
4. Immovable property
5. Vehicles
6. Loan accounts in businesses
7. Available funds in bank accounts

• Deduct non-claimable assets from the total value of assets such as but not limited to:

1. All assets not included in the antenuptial contract
2. The commencement value as stated in the antenuptial contract
3. The total value of all liabilities
4. The total value of any legacy, inheritance or donation

• The final amount is the total accrual of assets

Claiming of Accrued Assets

Accrual claims can only be submitted if the marriage comes to an end either by divorce or death. In the case of death, an accrual claim must be paid before the will is put into effect.

Should the accrual value of the deceased spouse’s estate be greater than that of the surviving spouse, an accrual claim would be made against the deceased estate and vice versa.

Van Deventer & Van Deventer Incorporated – Notary Public Cape Town & Sandton

For legal assistance with accrual calculation or drafting an antenuptial contract with accrual for you and your soon to be spouse,  please don’t hesitate to contact us.