Written for Property Poser

This week Property Poser’s panel considers the implications of being married out of community of property with the accrual system.

A reader tells us that she is married in terms of this regime and that the split of the accrual is 25/75 in her husband’s favour. It appears that one of the biggest assets in the estate is a property valued at approximately R3 million, registered in her husband’s name.

In the event of a divorce, she would like to know whether she could negotiate to keep the property in exchange for her claim on all other assets and, if so, whether she would have to pay a fee to have the house registered in her name.

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says the accrual system was introduced in the early eighties allowing spouses to maintain their separate estates during the course of the marriage.

“In the event of death or divorce, however, the spouse who has had the least growth in value of assets in his or her name is entitled to share in a portion of the growth of the other one’s assets.”

At the outset, says Geldenhuys, the starting value of each party’s estate is established and documented in the antenuptial contract.

“Any assets that are to be excluded from the calculation, such as a business, can be specified.”

Regardless of the growth in value of these assets, Geldenhuys says the other spouse will have no right to a share in them. “When the marriage ends, the final value of all assets forming part of the accrual system has to be determined.”

Geldenhuys says the value of any liabilities is also taken into account. “So if there is for example a bond on a fixed property, it is deducted from its value.”

In this instance, it is not clear whether there is a bond on the property in question, says Geldenhuys.

According to Schalk van der Merwe from Rawson Properties Helderberg, the Matrimonial Property Act gives a court the power to deviate from the agreed terms of the antenuptial contract.

However, such an order will only be made if there are exceptional factors that warrant it, says Van der Merwe.

“It is very important to realise that the parties can divide the estate in any agreeable manner in the event of a divorce, regardless of the marital regime applicable.”

Only when the parties cannot or do not wish to agree to other terms, will the marital regime be applied in its strictest sense, says Van der Merwe.

“This means that in theory it is possible for our reader to become the sole owner of the fixed property while her spouse takes on full ownership of other assets.”

Should the fixed property be transferred in terms of the divorce, Van der Merwe says there is a specific exemption on any transfer duty that may have been payable.

“Conveyancing fees will however still be due for the transfer, which are based on the value of the property.”

Click here to ask your Property Poser question.