Marital Regimes In South Africa – Part Three
Marital Regimes In South Africa – Part Three
COMMENCEMENT VALUES, EXCLUSION OF ASSETS AND THE CALCULATION OF THE ACCRUAL
1. COMMENCEMENT VALUES
In an antenuptial contract the commencement values refer to the assets and liabilities each party brings into the marriage. These values are typically recorded at the beginning of the contract and serve as a baseline for determining what each party owned before the marriage began.
The purpose of including commencement values is to establish a clear understanding of each party’s financial standing at the start of the marriage. is important in the event of dissolution of the marriage, as it helps to distinguish between assets and liabilities acquired before and during the marriage.
The commencement values of each spouse’s respective estate can be R0.00 and you do not have to include a certain value.
2. EXCLUSION OF ASSETS
The parties can choose to exclude certain assets that will not form part of the marital estate and will not be subject to or included in the accrual calculation. This can include assets owned by one party before the marriage, inheritances or gifts received during the marriage, or any other specific assets the couple agrees should remain separate. An asset excluded in the antenuptial contract and any proceeds received on that specific asset will not form part of the accrual calculation.
Excluding assets in an antenuptial contract can help protect individual property rights and clarify financial expectations in the event of dissolution of the marriage.
Assets to be excluded must be specifically listed in the antenuptial contract and properly described. Assets which are not properly described can cause problems for the executor or the divorce attorney who will be involved at dissolution of the marriage.
3. HOW THE ACCRUAL IS CALCULATED
Herewith a practical example on how the accrual will be calculated on dissolution of the marriage:
The accrual is determined by subtracting the net asset value of one spouse’s estate at the start of the marriage from the net asset value of that spouse’s estate at the end of the marriage. After calculating each spouse’s accrual value, the smaller growth will have a claim against the larger growth for half of the difference between the two accruals.
For example, if spouse A had an asset value of R10 000.00 at the commencement of the marriage and an asset value of R100 000.00 at dissolution of marriage then the accrual to that spouse A’s estate is R90 000.00. (R100 000.00 – R10 000.00)
If spouse B’s commencement value was R20 000.00 and the dissolution value is R200 000.00, it follows that the accrual to spouse B’s estate is R180 000.00. (R200 000.00 – R20 000.00)
The net accrual is calculated by subtracting the smaller accrual from the larger accrual. In the above example: R180 000.00 – R90 000.00 = R90 000.00.
Therefore, spouse A, as the spouse with the smaller accrual, acquires a claim against spouse B’s estate for half of the net accrual being R45 000.00.
Deciding on the best option for you can be challenging and may require extensive discussion between you and your prospective spouse. We would advise that you make an appointment with our notary at Brits Law to have a thorough discussion with regards to your options and to ensure that the antenuptial contract is tailored to your specific needs.