This article explains everything you ever needed to know
about the Accrual System.A brief history of marriage in
How it works and how it affects your testamentary planning.South Africa’s legal system has in the past few decades
progressed in leaps and bounds in attempting to ensure
equality between the sexes before the law.

Until the introduction of the Accrual System into our marriage law,
the legal position of married women in South Africa
was one which would make even the most ardent modern
chauvinist blush.Marriage law — the South African perspective
The legal position prevailing in most legal jurisdictions, even as recently as the last century, can be seen from the comment by an eminent American law professor who, writing in 1917, commented
that “husband and wife are one and that one is the husband”. In South Africa, prior to 1984, our law usually left a prospective bride (particularly one intending to be a full-time mother and caregiver) with a difficult choice to make between the available marital regimes.
In the absence of an antenuptial agreement, the common law position then prevailing was that which had existed for centuries: upon marriage the spouses’ estates became one (called
“community of property”), over which the husband had sole control in terms of his so-called “marital power”. Our law’s wedding gift to the bride was to effectively bestow on her the legal capacity of a child. A betrothed couple could avoid this regime from applying to their union by entering into an antenuptial agreement prior to
tying the knot. By excluding “community of property” in the con-
tract, their estates would remain separate thus giving the wife full legal capacity and complete control over her estate. An intending bride was thus often caught between “ the devil” (community marriage with little legal power over the joint estate and diminished legal status) and the “deep blue sea” (marriage out of COP – full legal capacity over her separate estate but having no claim against her husband’s assets upon his death or their divorce).
The introduction of “the Accrual System” In 1984, the Matrimonial Property Act was passed, dragging our marital law somewhat be-
latedly into the 20th century. For marriages in community of property, the Act abolished the husband’s “marital” power over his wife and their joint estate. A system of joint (and equal)administration over the community assets was introduced for all such marriages (even for “in community” marriages entered into prior to 1984). The Act also gave spouses who chose to
marry out of community of property another option: the “Accrual System”.
What is the Accrual System?
The Accrual System, based on the German model, has been described as one of “deferred sharing of profits”. It automatically applies to all marriages out of community of property after 1
November 1984, unless specifically excluded by antenuptial contract. With the Accrual System, during the marriage the spouses are fully independent and there is a complete separation of
property. On dissolution of the marriage either by death or
divorce, the gains made during the marriage are shared. The Accrual System thus recognises that marriage is a partnership but assets acquired before the marriage are not shared.

How does the Accrual System work?
Each spouse declares a “commencement” value for his or her estate. On dissolution of the marriage each spouse’s estate is again valued. The spouse whose estate shows the smaller gain is
given a claim against the spouse whose estate shows the greater gain, for an amount equal to one-half of the difference between the two gains or “accruals”. The “commencement” values are adjusted for inflation and the “dissolution” values exclude certain assets like inheritances (see Accrual example below). As the example shows, it’s not always the “wealthier” spouse overall (i.e. the husband above) who has to pay the Accrual claim on dissolution!
The Accrual System effectively ensures that
spouses share equally in the wealth they create
during the marriage.

What happens if a spouse dies?
While most people think of an Accrual claim in
the context of a divorce, probably the most com-
mon way in which a marriage is dissolved is by
death of one (or tragically both) of the spouses.
On death of a spouse, the Accrual claim is calcu-
lated and depending on their respective gains,
could result in either (i) a claim being lodged by
the surviving spouse against the estate of the
deceased spouse (if the survivor shows the
smaller gain) or alternatively, (ii) the survivor
might be required to make payment into the de-
ceased spouse’s estate (if the latter shows the
smaller gain). Some antenuptial contracts provide
that if the survivor has the greater accrual, then
the deceased spouse’s estate’s accrual claim is
forfeited.

How does the Accrual claim affect one’s testa-
mentary planning?

Example 1
A husband dies and, having intended to leave his estate in
equal shares to his wife and a child from his previous mar-
riage, made provision for this in his Will. If he hadn’t al-
lowed for his wife’s accrual claim against his estate, she
will receive, in addition to her accrual claim, half of the
balance too—potentially more than was intended, leaving
the child less.
Example 2
A wife dies leaving her estate to her children from her
previous marriage, having thought that her husband had
sufficient assets of his own. However, she overlooked her
Accrual claim against her husband’s estate and he would
have to pay the amount of the claim into the estate to be
inherited by his stepchildren.
The possible impact of an accrual claim upon
death of either of the spouses is an important
issue commonly overlooked in one’s testamen-
tary planning. The rule is that the Accrual claim is
calculated and takes effect before applying the
deceased spouse’s Will.
The Accrual claim, if it is due to the surviving
spouse, constitutes a claim against the deceased
estate which ranks in preference behind that of
other creditors but ahead of heirs. In other
words, the Accrual claim due to a surviving
spouse must be paid before any other heirs such
as children, parents and other can inherit.
Where married couples leave their entire estates
to one another in their Wills, the effect of the
Accrual claim is academic — whatever the result
of the calculation, the deceased spouse’s estate
ends up in the hands of the survivor.
Planning for the Accrual claim
By properly planning for one’s death, one can
ensure that the effects of an accrual claim are
dealt with—an antenuptial contract and Will can
ensure there are no unintended problems, and a
life assurance policy can ensure that there is
enough cash available to meet any possible Ac-
crual claim.