When entering into marriage, many people are not aware of the laws that govern their marriages and, despite often having signed an antenuptial contract, they only properly consider the legal consequences of their marriage in the event of divorce.

In terms of the Matrimonial Property Act 88 of 1984 (“MPA”), spouses can marry in community of property, out of community of property with the express exclusion of the accrual or out of community of property subject to the accrual. In those marriages that are subject to the accrual system, each spouse retains and controls their own estate for the duration of the marriage. However, on dissolution of the marriage, the spouses will share in the accrual or growth of their respective estates.

The date for the determination of the accrual is crucial as it can mean the difference between a higher or lower accrual apportionment. In terms of the Divorce Act 70 of 1979, the date of the divorce itself is the date upon which a court determines the accrual. However, much debate has ensued in the courts over the amount of time that passes between when summons is issued for divorce and when the matter is actually allocated trial dates – which can sometimes take over two years, and having regard to this lapse in time, whether or not the more appropriate date for determination of accrual should be at close of pleadings (litis contestatio), which is ordinarily much earlier in the proceedings.

On 24 March 2016, in the case of Brookstein v Brookstein, the Supreme Court of Appeal (SCA) put to bed this issue that the courts could not reach unanimity on. This case arose from a claim for delictual damages instituted by the appellant’s ex-wife, Mrs Brookstein for the sum of R83,9 million on the basis that her ex-husband falsely or negligently misrepresented the extent of his accrual at the time that they settled their divorce. The SCA confirmed that in divorce proceedings, the correct date for the determination of the accrual is date of divorce and not date of close of pleadings. The court reasoned that the relevant provisions of the MPA that deal with the accrual make this distinction clear and that the close of divorce pleadings is merely a procedural step. The court stated further that:

“Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or business-like for the words actually used [in the legislation]. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation.”

The SCA also pointed out that Section 8(1) of the MPA allows for a spouse to apply to court if they believe that their right to share in the accrual of the estate is being or will be seriously prejudiced by the conduct of their spouse. The applicant has to prove that their spouse is actively dissipating assets and that this action will cause the applicant to be or probably be seriously prejudiced thereby. In such cases, the court may order an immediate accrual determination.

So, the moral of this story is, when marrying out of community of property, it is imperative that you understand your antenuptial contract and the legal consequences that will follow on divorce. Furthermore, in the event that you proceed with divorce, you would be wise to know that the determination of accrual is the date of the divorce itself and best you keep an eye on your spouse’s assets so that you don’t end up sorry at the end.