Divorce is a legal process that involves the dissolution of a marriage and the termination of the legal relationship between spouses. In South African law, divorce is governed by the Divorce Act, 70 of 1979, which sets out the requirements and procedures for obtaining a divorce. One of the key issues that often arises during divorce proceedings is the division of assets and liabilities accumulated during the marriage, commonly referred to as the accrual. The accrual system is a unique feature of South African law that aims to achieve a fair division of assets between spouses. However, there may be circumstances where a party to a divorce may forfeit the accrual. In this article, we will explore the concept of the accrual system in South African law and discuss whether a party to a divorce can forfeit the accrual.
Understanding the Accrual System in South African Law:
The accrual system is a legal principle that determines the extent to which the growth of the estates of the spouses during the subsistence of the marriage is shared upon divorce. The accrual system is automatically applicable to all marriages in South Africa, unless the parties have specifically excluded it in their antenuptial contract or in a postnuptial contract. The accrual system is based on the principle of financial equality and aims to ensure that the parties share in the growth of their estates during the marriage, regardless of their respective contributions.
The accrual system works by calculating the net increase in the value of each spouse’s estate from the date of marriage to the date of divorce. The accrual of each spouse’s estate is calculated by taking the net value of the estate at the commencement of the marriage and deducting certain exclusions, such as inheritances and donations, and adding certain inclusions, such as the increase in the value of assets and investments. The net accrual of each spouse’s estate is then compared, and the spouse with the smaller accrual has a claim against the spouse with the larger accrual for half of the difference between the accruals.
Forfeiture of the Accrual:
While the accrual system is designed to promote fairness in the division of assets upon divorce, it is not an absolute right. In certain circumstances, a party to a divorce may forfeit the accrual. The Divorce Act provides for two main instances where the accrual may be forfeited, namely:
Breach of the Duties of the Marriage:
- Section 9(1)(a) of the Divorce Act provides that a court may order the forfeiture of the accrual of a party if that party has breached his or her duties as a spouse in such a way that the other party cannot reasonably be expected to continue with the marriage. This may include cases where a party has committed adultery, deserted the other party, or engaged in other behavior that constitutes a material breach of the marital duties. In such cases, the court may order the forfeiture of the accrual as a form of penalty for the breaching party’s misconduct.
It is important to note that the breach of the duties of the marriage must be of a serious nature and must be such that the innocent party cannot reasonably be expected to continue with the marriage. The court will consider the circumstances of each case, including the duration and severity of the breach, the impact of the breach on the innocent party, and any other relevant factors. The court has wide discretion in determining whether to order the forfeiture of the accrual, and its decision will be based on the specific facts and circumstances of each case.
Book a consultation with Nicola Le Roux at Le Roux Attorneys and, to keep up to date with all we offer, follow us on social – LinkedIn and Facebook.
