Lecture 11

Question 1

When does the accrual system apply? (S 2 of MPA)

Answer 1

1) Date of the marriage: Marriage concluded after commencement of the Matrimonial Property Act on 1 November 1984.
2) Antenuptial contract must exclude community of property and exclude profit and loss.
3) Accrual was not expressly excluded!

Question 2

Section 3(1) of MPA provides that:

Answer 2

1) at the dissolution of the marriage,
2) the spouse whose estate shows no accrual or a smaller accrual,
3) such spouse acquires a claim against other spouse with the larger accrual
4) for an amount equal to half the difference between the accrual of the respective estates

Question 3

Section 3(2): Accrual claim only arises at the dissolution of the
marriage

Answer 3

1) Contingent or conditional right during the existence of the marriage
2) Claim for accrual only becomes a vested right at dissolution of marriage
3) During existence of marriage right is not transferable /attachable

Question 4

5 steps for the calculation of accrual:

Answer 4

1) Calculate net commencement values of respective estates
2) Divide the difference in half
3)Calculate difference between accrual of respective estates
4) Calculate accrual of respective estates
5) Calculate net end values of respective estates

Question 5

Calculate net commencement values of respective estates

Answer 5

1) Commencement value is ordinarily declared in the antenuptial
contract.

2) Commencement value is deemed to be nil if:
2.1) Commencement value was not declared in the antenuptial
contract and the contrary is not proved
2.2) The liabilities of the spouse exceeds his/her assets (cannot
have a negative commencement value!)

Question 6

Calculate net commencement values of respective estates

Answer 6

Interpretation of section 6(3) of MPA has presented a problem.
* Meaning of prima facie proof
* Olivier v Olivier
* Thomas v Thomas; TN v NN

Question 7

Calculate net commencement values of respective estates

Answer 7

The commencement value is also adjusted according to the Consumer Price Index (CPI).

Question 7

Calculate net end values of respective estates

Answer 7

1) Any amount accrued by way of damages/satisfaction for non-patrimonial loss does not form part of the accrual.
2) Any inheritance, legacy or donation which accrues during the union does not form part of the accrual
except if spouses agreed otherwise in their marriage contract.
3) Donations does not form part of the accrual (pay attention to principles where the donation is between spouses).
4) Value of assets transferred into a (sham) trust may be taken into consideration for calculating accrual.
5) Determine net end value is to be determined at the dissolution of the union – AB v JB

Question 8

Calculate accrual of respective estates

Answer 8

Accrual = End value – commencement value

Question 9

Calculate difference between accrual of respective estates

Answer 9

Value of estate with highest accrual – value of estate with lowest accrual = difference between the accrual of the respective estates

Question 10

Divide the difference in half

Answer 10

1) Do not forget this last step!! The spouse whose estate shows
the smaller accrual only has a claim for HALF the difference between the respective estates

Question 11

Marriage out of community of property and excluding community of profit and loss but including the accrual system

Answer 11

Section 8: Protective measures

Question 12

Section 8: Protective measures

Answer 12

1) Court may order immediate division of accrual in accordance with provision of the accrual system or on such other basis a court may deem just:
2) applicant’s right is seriously jeopardized
3) OR right will probably be seriously jeopardized
4) other persons will not be jeopardized by application