The accrual system
Parties wishing to enter into a marriage out of community of property do so by concluding an antenuptial contract. The law as it now stands is that such an antenuptial contract is subject to the accrual system. The Act does, however, make provision for this to be expressly excluded in the antenuptial contract. In terms of the accrual system, both parties’ estates are, in principle, independent during the subsistence of the marriage but, on the dissolution of the marriage, they share in the accrual accumulated by each other during the marriage.
This accrual is defined in section 4 and 5 of the Act and may also be defined in the parties’ antenuptial contract. The accrual system is an attempt to resolve the disadvantages of the standard form antenuptial contract, which is why it is sometimes referred to as a form of deferred community of property. The aim is that at the dissolution of the marriage, both spouses share the assets amassed by their mutual contribution during the subsistence of the marriage. The Act provides for equal sharing in the defined accrual of both estates, but the parties can expressly alter their particular shares of the accrual in the antenuptial contract, which is a recommended course of action for parties with significantly different financial status.
Each spouse retains and controls his or her own estate during the subsistence of the marriage but their capacity to alienate any of this property is limited: in terms of section 8 of the Act a spouse can be prevented from managing his or her estate in such a way as to seriously prejudice the other spouse’s right to share in the accrual.
The claim to share in the accrual arises only on the dissolution of the marriage and this right is not transfer-able during the subsistence of the marriage.' There is, however, an exception provided for by s 8.4 the right to claim half of the difference between the accruals of the respective estates of the spouses cannot be ceded during the marriage, is not liable to attachment, and does not form part of the insolvent estate of a spouse. S 8(1) provides that the court may approach the high court for an order of immediate division of the accrual in instances where the other spouse by his or her conduct seriously prejudices (or will seriously prejudice) the other spouse’s right to share in the accrual.