The accrual system is the sharing-of-growth mechanism introduced by Chapter 1 of the Matrimonial Property Act 88 of 1984. South African couples married before the introduction of the system, or couples whose original antenuptial contract excluded it, sometimes wish to introduce it. Couples married with accrual sometimes wish to exclude it. Either change can be made by way of a section 21 application.
Adding the accrual system
To introduce the accrual system into an existing marriage, the spouses jointly apply to the High Court for leave to execute and register a notarial postnuptial contract bringing the marriage under Chapter 1 of the Matrimonial Property Act. The contract will provide for:
- the application of the accrual system from the date of registration;
- the initial value of each spouse’s estate as at that date, declared either in the contract itself or in a statement contemplated in section 6 of the Matrimonial Property Act;
- any assets to be excluded from the accrual calculation; and
- the standard creditor-protection clause.
Excluding the accrual system
To exclude the accrual system, the application is brought in the same way, with the proposed contract providing for the regime to operate without accrual from the date of registration.
Practical considerations
- The accrual calculation runs from the date the marriage comes under the accrual system (here, the date of registration of the new contract), not the date of the marriage itself.
- Care should be taken to declare an accurate initial value for each spouse’s estate, or to declare it as zero, as the parties prefer. The choice has implications for the eventual accrual claim.
- Where one spouse is exposed to creditor risk, the no-accrual route may be more appropriate. Where the marriage is more naturally a sharing relationship, the with-accrual route usually is.
- The court will consider the same section 21 requirements as on any other change-of-regime application.