MARRIAGES SUBJECT TO THE ACCRUAL SYSTEM: WHEN TO DETERMINE THE VALUE OF THE ESTATES

In South Africa marriages out of community of property are automatically subjected to the operation of the Accrual System, unless the parties include a specific clause in their Ante-Nuptial excluding the operation of the system. The operation of the Accrual System basically means that when the marriage is dissolved, by death or divorce, the spouse whose estate has grown the least during the marriage will be entitled to claim and receive half of the difference between his/her estate and the estate of the other spouse.

While the Matrimonial Property Act is clear that a spouse’s claim in terms of the accrual only arises when the marriage is dissolved by death or divorce, there has been much debate and varying court decisions as to when the value of a spouse’s estate must be determined for purposes of the accrual.

In 2010 Acting Judge Brassey  found, in his judgment in MB v NB 2010 (3) SA 220 (GSJ), that the operative moment when one must value the accrual of spouses is the moment when pleadings in their divorce action have closed and the disputes between the parties have been crystallised (litis contestation).

The findings of in MB v NB 2010 (3) SA 220 (GSJ) were subsequently followed and agreed with in the decisions of MB v DB 2013 (6) SA 86 (KZD) and KS v MS 2016 (1) SA 64 (KZD).

In 2014 however, Judge Sutherland, in his judgment in JA v DA 2014 (6) SA 233 (GJ,) disagreed with the findings made by Acting Judge Brassey and found that the accrual of spouses should be valued on the date on which the accrual claim rises between the spouses, being the date on which the marriage is dissolved.

On 26 March 2016 the Supreme Court of Appeal finally put the matter to rest in its judgment in Brookstein v Brookstein (20808/14) [2016] ZASCA 40, where it found the Judge Sutherland’s findings were undoubtedly jurisprudentially correct. In this judgment the Supreme Court of Appeal found that the date at which the accrual of the value of a spouse is to be determined is the date of dissolution of the marriage either by death or divorce.

NUNO PALMEIRA

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

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