Upon What Date Does the Division of Assets Take Place in a Divorce Subject to the Accrual System
The assets are divided at date of divorce in marriages in community of property, as are the assets in marriages subject to section 7 of the Divorce Act. One can therefore hardly be criticised for thinking that the same would apply in marriages subject to the accrual system.
But not so says Judge Kruger in the KZN matter of Schmidt v Schmidt. He determined that the date upon which the assets should be divided is litis contestatio ie the date upon which the issues between the parties have been defined. This often happens early on in the proceedings and the assets and liabilities at the date of the divorce can be very different to those at commencement of the proceedings. Clearly the date upon which the division takes place can have a massive effect on what each party receives.
This judgement flies in the face of the relevant legislation dealing with the date upon which the accrual is to take place, and is presently on appeal.