When you do divorce, act like an adult

Children and Divorce

The well-being of children in a divorce or separation is the most essential aspect of any divorce. Although most couples believe children’s well-being is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an unavoidable part of the process and are determined to fight battles in court.

From time to time one comes across an stubborn parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He/she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.

Unfortunately it happens often that one parent use the mechanisms of the law in a unlawful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent.  Often one would find that a parent will for example falsely accuses the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child. In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.

A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship. The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:

The child must feel and experience unconditional love from each parent.

The child must feel free of fault for the divorce and separation.

The child must feel that each parent respects the rights of the other parent.

The child must feel that he/she will be okay after the divorce and separation.

The child must feel that each parent will be okay after the divorce and separation.

Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more  but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.

The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.

Bertus Preller

Family Law Attorney

Bertus Preller & Associates Inc – Cape Town

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

Facebook: http://www.facebook.com/divorceattorneys 

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Cape Town divorce lawyer Bertus Preller writes South Africa’s first Book on Divorce and Separation for the general public, published by Random House Struik

CAPE TOWN, WC, SOUTH AFRICA, August 7, 2013 /EINPresswire.com/ —

Everyone’s Guide to Divorce and Separation by Bertus Preller will help with the following crucial aspects: your rights when you get divorced in South Africa, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof, spousal maintenance and support, parental rights and responsibilities of children, how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support, the procedures to obtain a protection order when there is domestic violence or abuse, an unmarried father’s rights and how to acquire parental rights and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement.
In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work. Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them. – Judge Dennis Davis”

The book is on the shelves of all major book stores on and also at Amazon.com

About the Author:

Bertus Preller is a Family and Divorce Law Attorney and Mediator at Bertus Preller & Associates Incoss in Cape Town. He acts in divorce matters across South Africa He matriculated at Grey College, studied at the University of the Free State and the University of Johannesburg and was admitted as an attorney in 1989. He has nearly 25 years of experience in law. He was appointed as a part time mediator and arbitrator in 1996 by the CCMA. He has also been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, Woman and Home, Women’s Health, You, Huisgenoot and Fairlady and also appeared on the SABC television show, 3 Talk, Morning Live and on the 5FM Breakfast show with Gareth Cliff. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, child abduction and Hague Convention cases and domestic violence matters and international divorce law. He is also the founder of iDivorce an online uncontested divorce service.

Tel: 021 422 2461

 

Follow Bertus Preller on Twitter: http://www.twitter.com/bertuspreller
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To visit the book’s official website go to: http://www.divorcelaws.co.za

Divorce Attorney Cape Town
Bertus Preller & Associates Inc.
+27214222461

Is a husband obliged to pay maintenance when his wife lives with another man?

 

A recent judgment concerned the issue whether a husband is obliged to pay maintenance to his former wife, who is involved in a relationship with another man, after divorce. The plaintiff issued summons against the defendant, her husband, during 2003, for a decree of divorce, maintenance for herself and their son and ancillary relief.

The parties had not lived together as man and wife for a continuous period of at least two years prior to the date of the institution of the divorce action. In terms of the provision of s 4(2)(a) of the Divorce Act 70 of 1979 (the Divorce Act), this is proof of the irretrievable break-down of the marriage. The remaining issues were whether the plaintiff is entitled to maintenance, and if so, what such maintenance should be. The defendant’s case in respect of the plaintiff’s entitlement to maintenance was that it is against public policy that a woman should be supported by two men.

The maintenance post-divorce Section 7(1) and (2) of the Act sets out when a court may order the payment of maintenance and the factors that should be taken into account when making such determination.

It provides as follows:

‘7(1) A Court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.

(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the Court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct insofar as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.’

Through a long line of cases dealing exclusively with maintenance pendente lite, it has become customary not to award maintenance to a spouse who is living in a permanent relationship with another.

In Drummond v Drummond the Appellate Division agreed with the definition of the phrase ‘living as husband and wife’ as stated by the full bench. The parties agreed that the husband would pay maintenance towards the wife and that maintenance would ‘cease should the plaintiff prove that the defendant was living as man and wife with a third person on a permanent basis’. The said phrase has the following meaning: ‘. . . the main components of a modus vivendi akin to that of husband and wife are, firstly, living under the same roof, secondly, establishing, maintaining and contributing to a joint household, and thirdly maintaining an intimate relationship.’ The plaintiff and S clearly live together as husband and wife according to the said definition.

In Cohen v Cohen the parties determined in a deed of settlement that the maintenance payable by the plaintiff (the husband) would cease if the defendant lived with another man as husband and wife for a certain specified period. This order was varied by a maintenance court in respect of the amounts the husband had to pay towards maintenance. In the maintenance court’s order the condition in respect of the cohabitation was left out. In a subsequent action it was decided that, where the magistrate had left out the said clause, the condition was no longer enforceable as it had been substituted by the maintenance court.

In Carstens v Carstens the wife claimed maintenance pendente lite in a rule 43 application while she lived with another man as husband and wife. Mullins J found: ‘It is in my view against public policy that a woman should be entitled to claim maintenance pendente lite from her husband when she is flagrantly and deliberately living as man and wife with another man. Not only is applicant in the present case living in adultery, but she and her lover are maintaining a joint household complete with the addition of an adulterine child. She has by her conduct accepted the support of Clarkson in lieu of that of her husband. The fact that Clarkson is unable to support her to the extent that she may have been accustomed in her matrimonial home with respondent does not appear to me to affect the position.’

In SP v HP (another rule 43 application) it was found, on the strength of Carstens, that ‘(t)he objection is not so much about the moral turpitude attaching to the illicit cohabitation, but more about the notion of a woman being supported by two men at the same time’.

In the unreported judgment of Qonqo v Qonqo dealing with a rule 43 application for maintenance pendente lite, the court, in spite of the fact that the applicant cohabited with her lover, ordered the respondent to pay maintenance pendente lite. The reason for ordering the payment of maintenance was that there was no proof that the lover supported the applicant in that instance.

It is also clear from the wording of s 7(2) of the Divorce Act that the legislature did not determine that maintenance should cease when the person receiving the maintenance is in a relationship akin to a marriage but only on remarriage. It is usually by way of an agreement between the parties that the additional condition relating to the cessation of payment of maintenance on the cohabitation with a third party is added.

Marriage entails that the parties establish and ‘maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another’. One of the effects of marriage is the reciprocal duty of support. This duty of support does not exist, in circumstances such as these, if there is no marriage.

In Volks NO v Robinson and Others the proceedings had been initiated by Mrs Robinson who had been a partner in a permanent life partnership with Mr Shandling for a period of 16 years until his death in 2001. The couple had not been married, although there was no legal obstacle to their marriage. Following the death of Shandling, Robinson submitted a claim for maintenance against his deceased estate. The executor of the estate, Volks, rejected her claim because she was not ‘a survivor’ as contemplated by the Act. Skweyiya J said at paras 55 – 56: ‘Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouse’s rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married. The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.’

If regard is had to the decision of Cohen, that it cannot be read into s 7(2) of the Act that the maintenance will cease when the recipient of the maintenance lives as husband and wife with another, as an express agreement to that effect can be amended by the maintenance court. Having regard to the factors that should be taken into account when determining whether the defendant ought to pay maintenance for the plaintiff, in terms of s 7(2) of the Act, the factors mentioned are not exclusive.

When taking into consideration the factors mentioned in s 7(2) of the Act to determine whether the defendant is liable to pay maintenance the following emerge:

(a) The existing and prospective means of each of the parties and the parties’ respective earning capacities.

(b) The financial needs and obligations of the parties. It is clear that neither of the parties can live lavishly, but they are not destitute.

(c) The age of the parties.

(d) The duration of the marriage.

(e) The standard of living of the parties prior to the divorce.

(f) The conduct of the defendant insofar as it may be relevant to the breakdown of the marriage.

The facts of this matter differed materially from Carstens; SP v HP; and Qonqo. It is immaterial whether the defendant was unable to support the plaintiff and their son, or whether he was merely unwilling to do so. Other legislation also makes it clear that the legislature envisaged that a man can be supported by two women. In terms of the provisions s 8(4) of the Recognition of Customary Marriages Act 120 of 1998, a court dissolving a customary marriage has the powers contemplated in ss 7, 8, 9 and 10 of the Act. This has the effect that with polygamous customary marriages a husband will have the right to be supported by more than one wife, post-divorce, if circumstances demand it. Although it might have been a concept that was unacceptable in a previous dispensation, the concept is not unacceptable today. The court was of of the opinion that in the circumstances of this case it could not be said that it is against public policy that the defendant should be liable to pay maintenance to the plaintiff; there is no legislative prohibition and the court found that there was no general public policy to that effect or moral prohibition.

When billionaires divorce

When dealing with high net worth and multimillionaires divorce matters a divorce attorney must make sure to employ the best possible experts as part of the legal team, this is especially so if the assets at stake run into millions. I was involved as the divorce attorney of a client in a recent matter where two British citizens divorced in South Africa with assets across the globe that ran into millions of rands. In matters such as these various expert witnesses may be employed to lead evidence on behalf of a party to the divorce proceedings, consisting of forensic auditors, valuers, art experts, industrial psychologists, child psychologists, immigration experts etc.

In this matter I was fortunate to work with one of Britton’s top leading Family Law Barristers Richard Todd QC who rendered an opinion on the division of the matrimonial assets in this divorce case as far as it relates to UK law. Richard is an Oxford scholar who won the Hugh Bellott Prize (Highest Placed in the Oxford University Public International Law Finals) and who obtained the highest awards available to a practising Silk: The Chambers & Partners “Family Law Silk of the Year “ and The Lawyer’s “Hottest Family Law QC”. Richard have given expert evidence of English law to the courts of Australia, Belgium, the Cayman Islands, the Channel Islands, Cyprus, France, Germany, Gibraltar, Hong Kong, India, Italy, New Zealand, South Africa, Spain and the USA and appeared in over 4000 matrimonial cases with a long list of report cases, needless to say the identity of former clients is confidential. However former clients include twelve Billionaires (Sterling) and two Oscar winning actors (plus another three who have been nominated).

In this matter the parties were married in England and subsequently immigrated to South Africa. In such a case the matrimonial property regime of England would apply to their marriage and English law would always apply to their marriage. In a case such as this and where the divorce is contested a South African court could divorce them but, the court would have to apply English Law. It is interesting to note that if a South African couple is on holiday in England and decides to get married, they would automatically marry in community of property and not according to English law.

The test is the husband’s domicile as at the date of the marriage, i.e. what country the husband considered to be his permanent home plus his mental intention to remain there indefinitely. Domicile is defined as the principal place of residence of an individual. This is determined primarily by intent.

Thus, if the husband regarded his place of domicile to be Cape Town at the time of the marriage, the parties would be married according to the laws of South Africa and not England and their type of marriage (matrimonial property regime) would be one in community of property. For the marriage to have been out of community of property, the parties would have had to enter into an antenuptial contract in South Africa before leaving for holiday. If they failed to do so, they would have to apply to court to register an antenuptial contract, postnuptially.

About the author:

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot, and also appeared on SABC television on the 3 Talk TV show. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Email: bertus(@)divorceattorney.co.za

Protecting Your Assets in a Divorce

The news of Kim Kardashian divorcing her husband after 72 days of marriage, highlights why it is important for business owners to make sure that their marital regime is governed in terms of an Antenuptial contract .  An  Antenuptial contract is the most cost-efficient and reliable pre-marital contract that can protect business assets in the unlikely event of a divorce.  An Antenuptial contract is a pre-marital contract between two parties entering into a marriage which regulates what happens to a spouse’s assets at the time of a divorce.  It sets forth how marital property will be divided in the event of a divorce.

A well drafted Antenuptial contract can save you time and money on litigation costs during a divorce and prevent a battle over the ownership of a business and other assets.  The more issues covered in the Antenuptial contract, means one less issue to litigate over during a divorce.  Therefore, it is a prudent investment to make prior to getting married.  One of the most important provisions a business owner can have in a Antenuptial contract is a provision addressing the appreciation of individual pre-marital assets (assets you possess prior to entering the marriage).

For example, let’s say your business, an asset, is worth R 6 million prior to getting married.  At the end of your divorce, your asset is worth R 12 million.  Your spouse could be entitled to half or more of the R 12 million appreciation during the marriage.  However, if you have a valid and enforceable Antenuptial contract whereby you and your partner agree that pre-marital property and any growth thereon is excluded at the start of the marriage, then such assets will not be taken into account for purposes of an accrual.

Marrying in terms of an Antenuptial contract (out of community of property) can also help limit your liability for your future spouse’s debts and prevent you from inheriting this debt during the marriage and divorce.  Remember, creditors can go after marital property- i.e., your business if you are married in community of property.

Antenuptial contracts may be unenforceable if certain formalities are not followed. A common attack to a Antenuptial contract is if both spouses were represented by the same attorney or one spouse was forced into the contract and did not really know what the consequences are. It is critical for you and your spouse to have separate attorneys who are independent of one another during the drafting and negotiation of the Antenuptial contract or at least, if you do go to one attorney, make sure that the attorney explains the pro’s and con’s and give the other spouse and option to discuss the agreement with another attorney.

An Antenuptial contract or pre-nuptial agreement must be entered into before marriage through a notary public, if not the marital regime by default will be that you are married in community of property. To change your marital regime later after divorce is costly and can only be accomplished by way of a court application in the High Court.

Another requirement for a valid and enforceable Antenuptial contract agreement includes the use of clear language in the agreement and terms that are fair. It is important both you and your future spouse have sufficient time to review, negotiate and execute the Antenuptial contract.  You and your future spouse want to avoid reviewing and signing the Antenuptial contract six hours before the wedding and while under duress.  Therefore, you should both have sufficient time to review the Antenuptial contract and formally execute it.  By undertaking these measures, you can protect your business and assets with a valid and enforceable Antenuptial contract.

Going through a Divorce? The 10 Things A Woman Should Do

Going through a Divorce? The 10 Things A Woman Should Do

Divorce shakes life’s foundations. Suddenly, high stakes issues exist in almost every arena: financial, legal and emotional. This creates the “perfect storm” that causes the couple’s conflict to rage completely out of control. During divorce it becomes difficult to make the rational decisions that are the heart of a carefully crafted settlement. Women who are understandably uncomfortable with the stress and tension of divorce may sometimes rush into a settlement only to reduce the conflict. Eventually, however, in future, they may live to regret their hastily made decisions.

If you are like many women facing divorce, you hope to reach an amicable settlement and avoid bitter and costly legal battles. Your divorce settlement, however, will impact your financial well-being and that of your children for many years to come. Therefore, you must achieve not just any settlement but one that truly meets your needs and that of your children.

If you are the wife in a marriage where your husband is the breadwinner and/or controls the family finances, the situation could get especially difficult.

Ten important things that you should do:

  1. Gather as much financial information as possible.
  2. Change your email passwords.
  3. Start putting money away for legal fees. If you don’t have access to your own funds your attorney can claim a contribution from your spouse to pay your legal fees.
  4. Make a list of your monthly income and expenses as well as the expenses of your children.
  5.  Open a new checking and savings account.
  6. Open new credit cards in your name only.
  7. Change your Will, if you are married out of community of property, get a copy of your antenuptial contract.
  8. Change beneficiaries on life insurance policies.
  9. Take an inventory of all personal (non-marital) property, take an inventory of all marital property.
  10. Decide who will be the primary caregiver of the minor children and where they shall live.

Antenuptial Contracts – The most important contract in your lifetime

The Antenuptial or Prenuptial Contract is certainly one of the most important documents that any person will sign in his/her lifetime, well that is if you decide to tie the knot and get married.  Antenuptial agreements are often seen as a cold, harsh and unromantic sign that one’s partner is planning on the relationship ending in doom. Some people have no issues with them and see them as valuable protection for both parties while others might go as far as to call of their wedding if the idea surfaces.

A major problem however is that people somehow disregard the importance of the Antenuptial Contract and many embark on a marriage without due cognisance of the repercussions that might follow at a later stage, especially when the marriage end in the big D – divorce. Somehow many people merely see the Antenuptial Contract as a formality, something that needs to be signed prior to the wedding day, without realising the consequences of such an important legal instrument. The problem is that the Bride and Groom, concentrates more on the wedding ceremony, the dress, the honeymoon etc. and leaves the Antenuptial contract for that late minute meeting with an attorney just before the wedding day.

No one goes into a marriage contemplating a divorce but when you consider that the Antenuptial Contract governs what will happen to your assets and liabilities on divorce or death, it makes lots of sense that considerable thought should be given to concluding it and that its contents should be fully understood by all parties concerned. Unfortunately many people are more drawn into the eyes of their spouse prior to the marriage than to the importance of the wording of a proper Antenuptial Contract.

Marriage in Community of Property

Where you did not conclude an Ante nuptial Contract prior to your wedding day, you will automatically marry in community of property. ‘In community of property’ means that everything the couple own, and their debts, from before their marriage are put together in a joint estate. And everything they earn or buy after their marriage is also part of this joint estate. Any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share.

On termination of the marriage, the husband and wife are each entitled to a half-share of the joint estate and they are jointly liable for any liabilities. A major disadvantage is that if one partner becomes insolvent, the other is protected only if he or she owns property that does not form part of the joint estate. Everything in the joint estate will be attached and sold off to pay any creditors.

Marriage out of Community of Property

Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets.

This clearly gives parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors. There is no provision for any sharing whatsoever.  A party who contributed to the other party’s estate whether in cash or otherwise would have a heavy onus to prove that he or she was entitled to anything from that party’s estate on dissolution of the marriage.

Where one party stays at home to raise children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the former may find herself with nothing and no claim to the assets of the latter.

The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

Marriage out of Community of Property with Inclusion of the Accrual System

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property, there was no form of sharing between them of what was built up during the marriage. The accrual system was introduced to remedy this.

The Matrimonial Property Act 88 of 1984 brought with it the “accrual” system which permits a form of sharing, consistent with a primary objective of marriage, but permitting retention of each party’s independence of contract and ability to retain their own unique separate estates.

“Accrual” means increase. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. One spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property.

It is of utmost importance that a party wishing to enter into an Ante Nuptial Contract must fully understand what it is they are signing. It is for this reason that a standard form contract cannot be used, that consultations cannot be held over the phone or by means of email and that, unfortunately.

The important features of an accrual marriage are in essence the following:

  • Each party retains his or her own estate. Each party may accumulate assets and incur liabilities without interference from or assistance of the other spouse.  The estate of each party is determinable separately.
  • The monetary value of the smaller estate is subtracted from the monetary value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate.
  • At dissolution of the marriage, the estate of each party is calculated by listing all assets, listing all liabilities, subtracting liabilities from assets and arriving at a net asset value.
  • In practical terms this amounts to a similar division to a marriage in community of property.  However there are certain crucial factors of an accrual marriage which add complexity and much more freedom of choice. When drafting the Ante Nuptial Contract, the parties can each decide to exclude certain assets.  The effect of excluding an asset will be that it does not feature on the asset statement at dissolution of the marriage and is completely excluded from the calculation. Assets which are not properly described can cause huge problems when the executor or the divorce attorney tries to decide what to do with it in calculating the net accrual value.
  • To exclude either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), can effectively ensure that couples share only what they choose to share and keep separate any item or items, or values, which they do not believe it fair to share (for example something acquired before the relationship commenced).Parties not wishing to exclude specific assets may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share, and which is termed a “commencement value”.

Excluded from the Accrual

Certain property belonging to either the husband or the wife may not be taken into account when the accruals are worked out:

  • Any damages awarded to either spouse for defamation or for pain and suffering;Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their antenuptial contract to include these or the donor has stipulated their inclusion;
  • A donation made by one spouse to the other. This is not taken into account as part of either the giver’s or the receiver’s estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.

Calculating the Accrual

The accrual is calculated by subtracting the net asset value of his/her estate at the commencement of marriage from the net asset value of his/her estate at dissolution of the marriage.

Example:

If spouse C had a net asset value of R10 000.00 at the commencement of the marriage (his/her “initial value”) and a net asset value of R100 000.00 at dissolution of marriage (his/her “end value”) then the accrual to his/her estate is R90 000.00. If the initial value of the other spouse B was R20 000.00 and hi/her end value R200 000.00, it follows that the accrual to his/her estate is R180 000.00.

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. In accordance with the Act, C (the spouse with the smaller accrual) acquires a claim against B (the spouse with the larger accrual) for one half of the net accrual, namely – R45 000.00.

If you do intend to get married, it is well worth your while to consult a reputable attorney, to discuss your particular requirements and ensure that you fully understand the application of the accrual system to your particular situation.

Conclusion

An Ante Nuptial Contract must be signed before the marriage and must be signed in the presence of a notary and two competent witnesses. The notary will then register the contract in the local registry of deeds.  If parties wish to conclude an Ante Nuptial Contract after their marriage it is necessary to launch an application to the High Court.

About the Author

Bertus Preller is a Divorce Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, You and Huisgenoot. His clients include artists, celebrities, sports people and high networth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.