When a couple decides to divorce in South Africa, the way their assets are divided depends heavily on their marital regime. One of the most common options is the “Out of Community of Property with Accrual” system. This system balances financial independence during the marriage with a fair division of assets upon divorce.
In this blog, we’ll explore what it means to be married out of community of property with accrual, how it affects divorce proceedings, and why having an experienced divorce lawyer is essential to ensure a fair outcome.
What is the “Out of Community of Property with Accrual” System?
When married out of community of property with accrual, each spouse retains ownership of the assets they brought into the marriage, but they agree to share any growth in wealth (the accrual) that happens during the marriage. Here’s a breakdown:
- Assets Before Marriage: The assets that each spouse had before the marriage remain theirs and do not form part of the accrual.
- Accrual: Any increase in value of the spouses’ assets from the date of marriage to the date of divorce is considered part of the accrual. Both spouses are entitled to share in this growth equally.
For example, if one spouse enters the marriage with a home worth R1,000,000, and the value of the home increases to R1,500,000 during the marriage, only the R500,000 increase forms part of the accrual, not the initial R1,000,000.
How Does Accrual Work During Divorce?
In a divorce out of community of property with accrual, the following steps are usually taken:
- Calculate the Net Value of Each Estate: Both spouses’ estates are evaluated to determine the total value of assets they each own at the time of divorce. Liabilities are subtracted from the assets to get the net value of each estate.
- Determine the Difference in Accrual: The difference in the accrual of both estates is calculated. The spouse whose estate grew less during the marriage has a claim for half of the difference in growth from the spouse whose estate grew more.
- Exclusions: Some assets may be excluded from the accrual, such as inheritances or specific assets excluded in the antenuptial contract.
For example, if Spouse A’s estate grew by R2,000,000 and Spouse B’s estate grew by R1,000,000, Spouse B has a claim for R500,000 (half of the R1,000,000 difference) from Spouse A.
The Benefits of the Accrual System
- Financial Independence: Each spouse retains control over their own assets during the marriage.
- Fair Division: Upon divorce, both spouses share in the wealth accumulated during the marriage, ensuring a fairer division of assets.
- Protection for Both Parties: The system provides financial protection to the spouse who may have contributed less financially but supported the household in other ways.
Why You Need a Divorce Lawyer
Divorcing under the accrual system can be complicated, particularly when it comes to calculating the accrual and determining which assets are included or excluded. Hiring an experienced divorce lawyer ensures that:
- Your rights are protected.
- The correct accrual is calculated.
- Any disputes are resolved through negotiation or court representation.
To get the best legal assistance during your divorce, consult a qualified family law attorney. At RMB Attorneys, our team of experienced divorce lawyers can guide you through the complexities of the Out of Community of Property with Accrual system and ensure a fair outcome.