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On divorce or death of one of the parties it becomes necessary to work out the amount of the accrual. Each spouse or the executor of the deceased spouse's estate must determine the extent to which his or her assets have grown during the course of the marriage. The spouses can be compelled to supply full particulars of the value of his or her assets at the time. It is convenient to give an example. Mr and Mrs Jones get married in 1985. At the time Mrs Jones has assets valued at R10000-00 and Mr Jones has assets valued at R90000-00. Thus the total value of their assets on solemnization of the marriage is R100 000-00. They get divorced in 2006, at which time Mrs Jones assets are valued at R100000-00 and Mr Jones assets are valued at R1000000-00. Thus the total value of their assets on divorce is R1100000-00. Given that the value of their assets on solemnization of the marriage was R100000-00 it can be seen that the extent to which both their assets improved is R1000000-00. It is this R1000000-00 which is now shared between the parties, which means that in terms of the accrual Mrs Jones will be awarded R500000-00 and Mr Jones will be awarded R500000-00.

However during the period of their marriage the value of money has changed drastically. In 1985 Mr Jones could by a Mercedes Benz 230 E motor vehicle for R30000-00. In 2006 that same car would cost him R300000-00 because of the change in the value of money during the subsistence of the marriage
Thus when the accrual is calculated, the value of each party's estate at the time of the marriage (the commencement value) will be adjusted proportionally to bring it into line with the value of money at the present time by use of the published consumer price index. The amount awarded will be adjusted accordingly.

Now once the difference between the accruals have been calculated and awarded, it may happen that one spouse owes the other a large amount of money. To avoid hardship, that partner may apply to a judge for an order to defer payment of all or part of this debt to a date in the future. Alternatively, the judge may order that the debt be paid in installments or by the transfer of specific assets to the partner to whom the debt is due. In most cases, an arrangement will be made for the partner who is in debt to the other to provide some form of security and to pay interest if payment in full cannot be paid immediately. This may be made part of the order granted by a court on divorce.

If one partner's conduct both during the marriage or upon divorce is obstructive to that it severely hampers (or may hamper) the other's right to share in his or her accrual, a Supreme Court judge may order that the accrual be divided immediately, in any proportion that seems fair in the circumstances, as long as no third parties, such as creditors, are prejudiced by such an arrangement.
In this way a wife may stop her husband from giving large gifts to, say, his mistress or secretary, in order to defraud the wife of her rightful share of his accrual. The court is vested with the power, at the same time, order that the accrual system no longer be applied to the marriage and that, in future, the pre-1984 system of marriage out of community of property, in which the estates of the parties are permanently and entirely separated, should govern the marriage instead.

If the marriage ends in divorce, and one party is clearly responsible for its breakdown, (example let us say that the Husband was living in adultery with his secretary and was abusing his wife mentally and physically during the marriage and continually lied to his wife, the court granting the divorce may order the husband to forfeit, either a portion or his entire right that he might otherwise have had to share in his or her spouse's accrual. Whether the Court orders forfeiture and the extent of such forfeiture will depend on how severe a view the Court takes of the guilty partner's misbehaviour, which must be substantial, and must have occurred during the subsistence of the marriage.

In the circumstances it is crucial for parties contemplating marriage before they actually take their vows to consult with an Attorney to obtain advice as to the regime under which they will be married and to ensure that the formalities are complied with before marriage as, save in exceptional circumstances, it is impossible to change your regime once your marriage is solemnized. It will be readily appreciated that the consequences of not complying with these procedures can be irreversible and disastrous. Therefore obtain the legal advice to which you are entitled. It is the prudent course to follow.

VICKY BOVE AND LESLIE KOBRIN
BOVE ATTORNEYS
Attorneys, Notaries and  Conveyancers
Principal: Vittoria Bove BA LLB (Wits); Associate: Leslie Martin Kobrin Dip Juris (Wits) Bus Man (Dam) Notary Public & Conveyancer
South Wing  Suite 1110
11th Floor Schreiner Chambers  |  94 Pritchard Street  |  Johannesburg
Phone: (011)-336-9581/2/3  |  Facsimile: (011) 336-9571
E Mail: lesk@boveattorneys.co.za

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