The Accrual system Flashcards
(33 cards)
What does the accrual system need?
ANC that complies with formalities set out in S87 of the Registry Deeds Act.
Which formalities are set out in S87?
- Signed by the Notary
- Registered in the Deeds office
To which marriage does this system applies to?
Marriage out of COP entered on or after 1 November 1984.
By black persons on or after 2 December 1988
Which section can expressly exclude the accrual system?
Section 2 of the Matrimonial Property Act
What happens to the marriage that were concluded before 1 November 1984?
They remain without accrual
How can the marriage that was concluded before 1 November 1984 include the accrual?
In terms of Section 21(1) of the Matrimonial Property Act. Or a grace period in subsection (2)
How is the spouse’s capacity to act limited in the Accrual system?
- Application for immediate division of the accrual if one spouse prejudices the other spouse’s right to share in the accrual (S8)
- A spouse may NOT freely give away everything in their will (mortis causa = after death), if it undermines the other spouse’s right to accrual.
Can the spouse’s right to share in the accrual be transferred/attached during the marriage?
NO, because the accrual only becomes active when the marriage ends
Can the marriage be dissolved because of the other spouse’s insolvency?
NO
What does the word “accrual” mean?
Accrual” is the difference between the net final value of your estate (at the end of the marriage, whether by death or divorce) minus the commencement value of your estate
What does Section 3(1) of the Matrimonial Property entails?
Upon the dissolution of the marriage, the spouse whose estate has shown a smaller accrual obtains the right to claim half of the difference between the growth in the estates of the two spouses.
Which sections exclude certain property in the accrual?
S2 &5
Which property is automatically excluded from the accrual by operation of law in terms of S5 and 4 of the Act?
- Damages for non-patrimonial loss
- Donations and Inheritance from third parties
- Property that is properly identified and excluded in the ANC
- Donations from each other
What does stante matrimonio mean?
during the existence of the marriage.
What happens to the right to share of parties during the existence of the marriage?
- The right may not be ceded as security for debt.
- The right to share is excluded as an asset in the estate of an insolvent spouse
Which section states where the commencement value should be applied?
Section 6
Where and when should the commencement value be mentioned in terms of Section 6(1) of 88 1994?
- In the ANC
- In a notarial deed annexed to ANC within 6 months from the date of the marriage.
What is the consequence of not mentioning the commencement value?
The presumption arises that the parties had no commencement value in their estates at the date of marriage. This would mean that whatever they possessed immediately becomes accrual property
What is the starting point of calculating the net commencement value?
Monetary value assets minus debts
What if there are more debts than assets?
the value is NIL, it’s not negative, just 0.
How can the commencement value of the individual party be protected against Inflation?
By adjusting the value according to the Consumer Price Index [Section 4(1)(b)(iii)
What is a Testamentary disposition
Something they got in the will
What is meant by Intestate inheritance?
What they got if the spouse died without a will
What is meant by Donation mortis causa?
A gift made in contemplation of death
