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MARRIAGES OUT OF COMMUNITY OF PROPERTY AND THE ACCRUAL SYSTEM

It is important to note that marriages in accordance with our Law can be in either one of two regimes recognised as being valid.

The common law of our country is that marriages or in the community of property. This marriage is solemnised in the normal manner without the parties thereto, concluding any sort of contract. Put simply, an in community of property marriage is meant that money and possessions belonging to either of the spouses at the time of the marriage, or acquired by them during the marriage, become part of a joint estate supervised by the husband in which each spouse had an equal, undivided share. All the assets of both parties then belong to a joint estate and during the subsistence of marriage they remain in the joint estate and are administered by the husband. Upon dissolution of marriage either by divorce or by the death of one of the parties, the joint estate is then divided and is shared by the parties equally.

Our all also recognises a marriage out of community property. Prior to the solemnization of the marriage, the parties attend the offices of a notary who draws up a contract which is signed by the parties in the presence of the notary prior to the marriage taking place. This contract is then registered in the deeds office, and it governs the basis upon which the assets of the parties will be dealt with both during the marriage and subsequent to its dissolution either by divorce or upon the death of one of the parties. Put simply what is meant by out of community property is that the parties retain their assets during the course of the marriage and is able to administer them without the interference of the other party. Upon the dissolution of the marriage each party retains his or her assets.

Prior to 1984, our courts experienced problems when it came to divorce of parties married to each other out of community of property. This is because in many of these marriages, the husband was the provider of the roof over their heads and attended to business aspects, whilst the wife remained at home, care of the household, looked after the children, and did not play any actor role in the improvement of their financial position. Thus, when it came to divorce her husband who had improved his asset base left the marriage with his assets, while the wife did not share in the extent to which the husband's assets increased. As a result, and in 1979, a provision was introduced into the divorce act designed to protect the wife in this position. This provision empowered the court on divorce of parties who are married to each other out of community of property on the application of the wife, to award her a share of the husband's assets in accordance with the manner in which she contributed to the marriage during its subsistence. Whilst this provision improved the situation, it meant the wife having to contribute to large amount in legal costs in order to have a share of the estate determined.

Accordingly and in 1984 when the Matrimonial Property Act was promulgated a new regime was introduced which brought into being the accrual system. This accrual system would only apply to marriages solemnized after 1 December 1984 in which an ante nuptial contract was concluded making the marriage and out of community property marriage where the accrual system was included. Watch the remainder of this article will do is to explain what the accrual system is and how it is applied. However, before dealing with the accrual system, it must be noted that in respect of out of community of property marriages solemnized of the 1 December 1984 the parties could choose whether to marry in accordance with the accrual system or to exclude it. If it was excluded, then the out of community property marriage as it existed prior to 1 December 1984 applied.

When a couple marry according to the accrual system, the spouses do not share their property during the marriage, but when the marriage ends by death or divorce, each spouse acquires a certain right to the other's property. Thus during the marriage, each party retains his or her assets and administers them freely without the control of the other party. The accrual system thus only kicks in when the marriage comes to an end.

The "accrual" is the extent to which the husband and wife have become richer by the end of the marriage, in other words, the amount by which the spouses' joint wealth has increased over the period of the marriage. Put more simply it is the extent to which the assets of both parties have increased during the subsistence of the marriage. The spouse with the smaller accrual has a claim against the one with the greater accrual for half of the difference between the two amounts.

The effect of this system is that each partner retains as his or her exclusive property, for all time, anything that he or she owned at the time they became married. But anything that either spouse obtains during the marriage may have to be shared with the other partner when the marriage comes to an end.

Excluded from the accrual will be any inheritance, or legacy, or donation or compensation for injury received during the marriage will not. Also excluded will be assets specifically listed and stipulated in the ante nuptial contract as not forming part of the accrual. All other assets of both parties will, however, have to be shared on dissolution of the marriage as an accrual.

If the accrual system is excluded in the antenuptial contract, in the event of divorce, the court will then have no discretionary power to redistribute property and only periodic maintenance will be available to a divorced wife. A spouse who is divorced after many years at home looking after children, for example, may find she cannot claim any portion of the husband's estate

However if such a marriage is dissolved by death, the survivor will have a claim against the estate of the deceased spouse for his or her reasonable maintenance needs until his or her death or remarriage to the extent that these needs cannot be met from the survivor's assets.

The parties are usually advised in their antenuptial contract, to declare the net value of their possessions at the beginning of the marriage. Alternatively, a marriage partner may, before the marriage or within six months of it, declare his or her net worth in a written statement, signed by the other partner and attested by a notary (who in most cases will usually be the one attending to their antenuptial contract). The notary files the statement with the copy of the antenuptial contract in the official record, known as the protocol.

If either partner's debts at the time of the marriage exceed the value of his or her property, the net value of his or her estate at the start of the marriage is regarded as nil. Furthermore, if either partner fails to declare the value of his or her property in the antenuptial contract or in a separate statement, his or her estate at the time of the marriage will be valued at nil, unless there is other proof of its value. If a partner's estate on marriage is regarded as nil, everything he or she owns at the end of the marriage will be treated as having accrued during the marriage, unless it can be proved that the property was his or her asset  before the marriage was solemnized..

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